218 So. 3d 121
La. Ct. App.2017Background
- Martin E. Regan Jr., attorney for St. Bernard Parish President David Peralta, sued Assistant Attorney General David Caldwell, the Louisiana Attorney General, and the Office of the Attorney General for defamation after Caldwell gave a newspaper interview about events at a grand jury proceeding.
- The Advocate article reported Caldwell’s statements that Regan created a scene, cursed at assistants, threatened Caldwell and another AAG, and might have become physically aggressive; Regan denied those assertions and called Caldwell a liar.
- Regan filed a defamation petition in East Baton Rouge Parish seeking damages; defendants moved to dismiss under La. C.C.P. art. 971 (special motion to strike / anti-SLAPP).
- The trial court granted the special motions to strike, dismissed Regan’s suit with prejudice, and awarded attorney’s fees to the defendants.
- On appeal, Regan argued Article 971 did not apply, the statements were not protected speech, the trial court applied the wrong standard, and his claim showed a probability of success (including that statements were defamatory per se).
- The appellate majority affirmed: it held Article 971 applied, Regan failed to show falsity or actual malice (and the statements were not defamatory per se), so he did not demonstrate a probability of success.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of La. C.C.P. art. 971 (anti‑SLAPP) | Regan: Caldwell’s statements concerned Regan’s conduct in a non‑public grand jury and are not protected petition/free speech. | Defendants: Statements were made in connection with a public issue (prosecution of Peralta) and are protected speech under Art. 971. | Art. 971 applies because statements related to a public issue and legislative intent requires broad construction. |
| Burden-shifting and probability of success standard | Regan: Trial court applied improper legal standard and should have found a probability of success. | Defendants: Once they showed protected speech, burden shifted to Regan to show likelihood of success; he failed. | Court applied Article 971 burden-shifting; Regan did not establish probability of success. |
| Defamatory per se / falsity element | Regan: Caldwell’s allegations (threatening, cursing, possible assault) are defamatory per se and thus falsity, malice, and injury are presumed. | Defendants: Statements are not defamatory per se; context matters and plaintiff must prove falsity and actual malice. | Statements not defamatory per se; context prevents presumption—Regan needed admissible evidence of falsity and malice. |
| Evidence of falsity and actual malice | Regan: Denial and referenced affidavit / polygraph support falsity. | Defendants: No admissible evidence in the record proving falsity or actual malice; polygraph excluded. | Regan offered no admissible evidence of falsity or actual malice at motion stage; thus failed to meet his burden. |
Key Cases Cited
- Fitzgerald v. Tucker, 737 So.2d 706 (La. 1999) (defamation protects interest in reputation)
- Costello v. Hardy, 864 So.2d 129 (La. 2004) (elements and limits of defamatory per se; allegations of mere unprofessional conduct not automatically per se)
- Romero v. Thomson Newspapers (Wisconsin), Inc., 648 So.2d 866 (La. 1995) (actual malice standard for public-figure/ public‑concern defamation)
- Thinkstream, Inc. v. Rubin, 971 So.2d 1092 (La. App. 1 Cir. 2007) (explaining Article 971 burden-shifting and analysis)