533 P.3d 829
Or. Ct. App.2023Background
- Three elected Newberg School District board directors (DeHart, Shannon, Brown) voted to remove BLM and Pride displays from district facilities (the "Ban").
- Members of a private but visible Facebook group (NEEd), who opposed the Ban, posted plaintiffs' employers' contact information (athletic director contact, employer phone number, employer website) and invited outreach or accountability actions.
- Plaintiffs sued under Oregon’s anti-doxing statute, ORS 30.835, alleging defendants knowingly disclosed personal information with intent to harass and that plaintiffs suffered "severe emotional distress."
- Defendants filed special motions to strike under Oregon’s anti‑SLAPP statute, ORS 31.150; the trial court denied the motions.
- The Court of Appeals considered (1) whether defendants’ posts were "conduct in furtherance of" protected free‑speech on a public issue under ORS 31.150(2)(d) and (2) whether plaintiffs made a prima facie showing that reasonable persons in their positions would suffer "severe emotional distress" under ORS 30.835.
- The appellate court reversed, holding defendants met step 1 of the anti‑SLAPP test but plaintiffs failed at step 2 because the disclosed employer information was public/readily available, plaintiffs were public officials, and the posts in context would not cause objectively "severe" distress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of ORS 31.150(2)(d): whether defendants' posts were "conduct in furtherance of" free speech on a public issue | Plaintiffs: Posts were not in a public forum and thus not sheltered by (2)(c)/(2)(d); NEEd is private | Defendants: Online postings furthered public debate about the Ban and are communicative, so (2)(d) applies | Held: (2)(d) applies; posts were communicative and connected to a public issue (the Ban) |
| Prima facie burden under anti‑SLAPP step 1 for Tofte and Brookfield | Plaintiffs: No nexus to public interest; employment contact info is private | Defendants: Posts furthered civic engagement (e.g., boycott, employer notice) on a high‑profile public issue | Held: Defendants met prima facie burden under step 1 for Tofte and Brookfield |
| Whether plaintiffs presented substantial evidence of "severe emotional distress" (ORS 30.835) | Plaintiffs: Affidavits describe anxiety, fear, sleep problems, perceived contacts to employers—sufficient for prima facie case | Defendants: Plaintiffs are public officials who publicized employer info; disclosed details were publicly available and in a private group—no objectively reasonable severe distress | Held: Plaintiffs failed to show a probability of prevailing; reasonable persons in their positions would not suffer the required "severe" distress |
| Trial court's denial of special motions to strike | Plaintiffs: Denial correct because material factual disputes exist | Defendants: Denial was legal error; anti‑SLAPP should have been granted | Held: Reversed and remanded — special motions should have been granted because plaintiffs did not meet step 2 |
Key Cases Cited
- Handy v. Lane County, 360 Or 605 (2016) (overview and purpose of Oregon anti‑SLAPP statute)
- Mullen v. Meredith Corp., 271 Or App 698 (2015) (anti‑SLAPP procedural standards and facts viewed favorably to plaintiff at threshold)
- Neumann v. Liles, 295 Or App 340 (2018) (application of ORS 31.150(2)(d) to online speech)
- C.I.C.S. Employment Servs. v. Newport Newspapers, 291 Or App 316 (2018) (special motion to strike dismissed nonmeritorious public‑interest claims)
- Mohabeer v. Farmers Ins. Exch., 318 Or App 313 (2022) (plaintiff's burden at anti‑SLAPP step 2: substantial evidence for prima facie case)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (distinction between public officials/figures and private individuals regarding public‑figure consequences)
- N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) ( First Amendment protects speech that may embarrass or coerce social ostracism in political contexts)
- Planned Parenthood of Columbia/Willamette v. Am. Coal. of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (political advocacy can include ostracism/pressure without losing First Amendment protection)