Lead Opinion
Opinion
Defendant William Alnor appeals the trial court’s denial of his special motion to strike brought under the anti-SLAPP statute.
We conclude the law does not require a defamation plaintiff to prove falsity by clear and convincing evidence and that plaintiffs have shown by a preponderance of the evidence that Alnor’s statements were false. Plaintiffs, however, have failed to demonstrate a probability of prevailing by clear and convincing evidence that Alnor made the challenged statement with “actual malice.” We'therefore reverse the trial court’s order denying Alnor’s special motion to strike, and direct the trial court to enter a new order granting the motion arid striking the complaint.
• Factual and Procedural Background
A. The Defamation Lawsuit
Hanegraaff is president of CRI, a nonprofit organization that disseminates religious information. Defendant William Alnor is a former CRI employee who maintains the Christian Sentinel, a Web site reporting on the fundraising and spending practices of various Christian organizations.
Hanegraaff posted an “urgent” letter on CRTs Web site stating that the post office branch in Rancho Santa Margarita had misdirected some of CRT’s mail to the wrong address, and that the recipient had discarded some of it. The letter explained that although the local post office branch “has accepted full responsibility for this error and has fixéd the problem,” the mishap caused
Plaintiffs filed a defamation complaint against Alnor based on his statement that CRI and Hanegraaff were under a federal criminal investigation. Alnor responded with a special motion to strike under the anti-SLAPP statute. In support of the motion, Alnor submitted a declaration outlining his investigation into the CRI memo.
B. Alnor’s Evidence
According to his declaration, Alnor called the Rancho Santa Margarita office of the United States Postal Service (USPS) and asked to speak to the postmaster. A person who identified himself as “ ‘Gus,’ the ‘acting postmaster’ ” told Alnor he was unaware of the mail diversion discussed in the CRI letter. After providing Gus a copy of the CRI memo, Alnor again called the branch and learned from an unidentified person that the CRI letter had been posted at the facility for the employees to view. This person told Alnor that no one at the facility knew anything about the allegations made in the CRI memo, and that the issue had become a matter of internal investigation. The person also advised Alnor to contact the postal inspector’s office in Pasadena, California, so they could start an investigation.
Alnor then called the USPS Pasadena postal inspector’s office and spoke to “Debra,” who advised Alnor that she was aware of the claims in CRTs memo, and her office was “ ‘investigating’ it on the basis of ‘mail fraud.’ ” Debra asked Alnor to fax her a copy of the CRI memo, and referred him to a Web site where he could file a mail fraud report. Debra explained that all complaints regarding suspected mail fraud were filed with the USPS’s national postal inspector’s office in Chicago, Illinois. Alnor then printed off, completed, and sent a mail fraud report to both the Rancho Santa Margarita branch and the Chicago postal inspector’s office. Alnor subsequently called the Chicago postal inspector’s office to ask about the status of his mail fraud
Alnor spoke on two more occasions with Gus, who said he had received Alnor’s mail fraud report and that the postal inspector’s office was investigating the situation. Gus said CRI had never complained about diverted mail, and that “[n]o apologies were ever made to CRI.” Gus opined the mail diversion outlined in the CRI letter appeared fabricated. Gus told Alnor, “It never happened. There were no diversions of mail.” On another call to the Rancho Santa Margarita Post Office, Alnor spoke with an unidentified woman who told him the employees of the office were annoyed over the allegations in the CRI letter and claimed “[CRI] never came in to talk to us at all.” She also confirmed that CRI had not filed a complaint regarding the allegedly diverted mail. Alnor also contacted the San Juan Capistrano USPS branch, whose postmaster told Alnor he had never heard of the matters claimed by Hanegraaff in the CRI memo. Alnor attempted to speak with CRI about the matter on several occasions, but the organization would not provide any information.
In addition to his own declaration, Alnor submitted the declaration of Jay Howard, another person who monitors religious organizations. Howard stated that shortly after Alnor published the allegedly. defamatory article, he com firmed with someone named “Mildred” that the post office had initiated a mail fraud investigation based on the CRI. letter. Alnor also introduced evidence, including a Los Angeles Times article, to demonstrate plaintiffs’ public figure status.
C. Plaintiffs’ Evidence
In opposing the special motion to strike, plaintiffs submitted Hanegraaff’s declaration. Hanegraaff stated that in the last quarter of 2004, he became aware there had been a noticeable drop in mail volume and the amount of donations received compared with the same period in prior years. In December 2004, CRI received a call from a company named Oil-Target Marketing (On-Target), a direct mail marketing company which deals with large volumes of mail daily. The On-Target employee- claimed the company had retrieved from its dumpster mail belonging to CRI. Hanegraaff dispatched Paul Young, CRTs chief operating officer, who returned with a full tray of CRI mail from On-Target. Young then met with a USPS official to discuss the situation. CRI decided not to file a formal complaint with the USPS because it did not wish to seek compensation, but only to correct the problem.
Hanegraaff’s declaration states that Alnor had made numerous personal attacks against Hanegraaff, including claims of plagiarism and financial improprieties, since CRI terminated Alnor’s employment in 1992. Hanegraaff stated he was aware of only one postal service investigation relating to the CRI memo, which was commenced over a month after Alnor’s article. The investigation did not concern any wrongdoing on the part of CRI or Hanegraaff, but focused only on the post office’s alleged mishandling of CRTs mail. Plaintiffs included a copy of the post office’s investigative report, which confirmed plaintiffs were not targeted.
Plaintiffs also introduced copies of letters received from the Office of Inspector General of the USPS, Federal Trade Commission, and the Federal Bureau of Investigation, in response to CRTs Freedom of Information Act document request; .each of the letters stated the agency had no investigative records concerning CRI or Hank Hanegraaff during the preceding two-year period.
II
Standard of Review
An order denying an anti-SLAPP special motion to strike is appealable under sections 425.16, subdivision (i), and 904.1. We review the trial court’s order de novo. (ComputerXpress, Inc. v. Jackson (2001)
Ill
Discussion
A. Applicable Anti-SLAPP and Libel Principles
The anti-SLAPP statute provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) An act in furtherance of the right of free speech includes “conduct in furtherance of the exercise of the constitutional right of petition
“The anti-SLAPP statute aróse from the Legislature’s recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits, but to use the legal system to chill the defendant’s first amendment right of free spééch.” (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006)
Plaintiffs concede Alnor’s statement arose from constitutionally protected activity, and that the statute’s first prong has been met. Thus, the only issue here is whether plaintiffs have demonstrated a probability of success on the merits.
“To establish a probability of prevailing, the plaintiff ‘ “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citation.] In doing so, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. [Citation.] Although ‘the court does not weigh the credibility or comparative probative strength of competing evidence,, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ [Citation.] Moreover, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.]” (Integrated Healthcare, supra,
Plaintiffs’ sole cause of action against Alnor is libel. Civil Code section 45 provides; “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,' or which has a tendency to injure him in his occupation.” There is no question the phrase “Federal Criminal Mail Fraud Investigation Launched Against CRI and Leader Hank Hanegraaff” exposes plaintiffs to “hatred, contempt, ridicule, or obloquy,” would cause them to be “shunned or avoided,” and has a tendency to injure Hanegraaff in his occupation.
B. Plaintiffs Have Met Their Burden to Show Falsity
1. Plaintiffs Are Required to Demonstrate Falsity by a Preponderance of the Evidence
Alnor contends plaintiffs must not only prove malice by clear and convine1 ing evidence, but must also prove falsity by the same standard. In support, Alnor cites Annette F. v. Sharon S. (2004)
In Annette F, the court reversed an order denying an anti-SLAPP motion in part on the plaintiff’s failure to prove the falsity of the challenged statement by clear and convincing evidence. (Annette F, supra,
As plaintiffs correctly note, CACI No. 1700 requires falsity to be proved by a preponderance of the evidence. Pattern jury instructions, however, while designed to accurately reflect the law, are not the law itself. (People v. Alvarez (1996)
The requirement that a public figure plaintiff prove malice by clear and convincing evidence arises from First Amendment concerns that freedom of expression be provided “the ‘breathing space’ that [it] ‘need[s] ... to survive ....’” (Sullivan, supra,
To meet their burden of proving the challenged statement was false, plaintiffs cite to (1) the letters received from federal agencies in response to plaintiffs’ Freedom of Information Act (5 U.S.C. § 552) request (FOIA letters); (2) the report from the Office of Inspector General (OIG report); and (3) a Los Angeles Times article submitted by Alnor. Alnor raised hearsay objections to challenge the admissibility of these items.
Plaintiffs contend the FOIA letters and the OIG report fall within the official records exception to the hearsay rule. Evidence Code section 1280 provides; “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [f] (a) The writing was made by and within the scope of duty of a public employee, (b) The writing was made at or near the time of the act, condition, or event, [f] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
The FOIA letters are authenticated by the declaration of Tom S. Chun, an attorney representing plaintiffs. Chun declares he received the FOIA letters after submitting a written request under the FOIA for “any and all investigative records pertaining to either CRI or Hanegraaff.” The FOIA letters each state they were prepared in response to the FOIA request, and identify the time period searched. Each of the letters is dated shortly after the requests were made, and identify the position of the sender. We conclude the official record exception to the hearsay rule has been met.
The OIG report is more problematic. The report contains information which was not directly observable by the investigator who prepared the report, and the investigator identifies no independent sources. Indeed, some of the information in the report appears to have come directly from CRI. For example, the report states: “Beginning in October 2004, CRI began to notice a marked. decline in the volume of mail they were receiving. Donations received in October and November of 2004 were down 36.730% compared to donations received in October and November of 2003.” Because there is insufficient information to indicate the trustworthiness of the OIG report, we decline to consider it here.
We also conclude the Los Angeles Times newspaper article is hearsay and therefore decline to consider it for its truth. Because Alnor introduced the article, plaintiffs contend he cannot now dispute its accuracy. The record demonstrates, however, Alnor specifically sought judicial notice of “[t]he fact that the Los Angeles Times published the article,” and not the truth of its
Thus, we are left with the question whether the FOIA letters are sufficient to “ ‘ “sustain a favorable judgment if the evidence ... is credited.” ’ ” (Integrated Healthcare, supra,
C. Plaintiffs Have Not Shown Actual Malice by Clear and Convincing Evidence
Unlike the falsity requirement, plaintiffs must demonstrate “actual malice” by clear and convincing evidence. This requirement presents “ ‘a heavy burden, far in excess of the preponderance sufficient for most civil litigation.’ ” (Hoffman v. Capital Cities/ABC, Inc. (9th Cir. 2001)
To show actual malice, plaintiffs must demonstrate Alnor either knew his statement was false or subjectively entertained serious doubt his statement was truthful. (Bose Corp. v. Consumers Union of U. S., Inc., supra,
A defamation plaintiff may rely on inferences drawn from circumstantial evidence to show actual malice. (Reader’s Digest, supra, 37 Cal.3d at pp. 257-258.) “A failure to investigate [fn. omitted] [citation], anger and
Alnor asserts he believed his challenged statement about plaintiffs to be true at the time he made it. To demonstrate this, Alnor relies on his declaration which describes a telephone conversation he allegedly had with “Debra” at the postal inspector’s office in Pasadena: “Debra advised me that she was aware of the claims in Hanegraaff’s fundraising letter and that her office was ‘investigating’ it on the basis of ‘mail fraud.’ ” Our analysis of whether plaintiffs have demonstrated actual malice by clear and convincing evidence focuses largely on Alnor’s purported conversation with Debra.
1. Fabrication
As we have noted, malice is shown where “a story is fabricated by the defendant, [or] is the product of his imagination . . . .” (St. Amant, supra,
“Normal principles of substantial evidence review do not apply to the appellate court’s independent review of an actual malice determination in a First Amendment libel case. [Fn. omitted.]” (McCoy v. Hearst Corp. (1986)
Fletcher v. San Jose Mercury News (1989)
On appeal, the plaintiff in Fletcher argued the evidence supported the finding of actual malice because the jury could reasonably infer that the defendant fabricated the story because of the discrepancy between the published article and the reporter’s notes. The Court of Appeal rejected this argument: “Although the conflict between [the reporter’s] notes and what [the reporter] wrote is troubling, we do not think it demonstrates with convincing clarity that [the reporter] believed the allegations against [the plaintiff] were unfounded.” (Fletcher, supra,
As we noted above, the USPS FOIA response gives rise to an inference Alnor fabricated his conversation with Debra at the Pasadena postal inspector’s office. This inference, however, lacks sufficient strength to meet the clear and convincing standard.
For example, the USPS FOIA response does not unequivocally state the USPS has no documents concerning an investigation of either of the plaintiffs, but only that the responder “could not locate any records” of any investigation in her search of the “USPS OIG, Investigations Office and the
The USPS FOIA response also does not negaté the possibility that Alnor simply misunderstood Debra. Specifically, Debra’s statement that “she was aware of the claims in HanegraafF s fundraising letter and . that her office was ‘investigating’ it on the basis of ‘mail fraud,’ ” was. ambiguous. One could reasonably interpret the statement to mean either that her office was investigating whether the purported misdirection of mail described in the CRI fundraising letter constituted mail fraud, or was investigating whether the letter itself constituted mail fraud. Plaintiffs do not contend, and have cited no evidence suggesting, Alnor considered Debra’s statement to be the former. Alnor might have carelessly interpreted Debra’s statement, but this would not establish malice. “Gross or even extreme negligence will not suffice to establish actual malice; the defendant must have made the statement with knowledge that the statement was false or with ‘actual doubt concerning the truth of the publication.’ ” (Annette F., supra,
We conclude any inference from the USPS FOIA response that Alnor fabricated his conversation with Debra is not sufficiently strong to meet the clear and convincing evidence standard.
2. Slanted Reporting
We note Debra’s representation that her office had initiated'an investigation of the CRI letter “on the basis of mail fraud” differs from Alnor’s report that plaintiffs were the targets of a “federal mail fraud investigation.” We conclude this discrepancy does not demonstrate actual malice.
The term “mail fraud” is typically used as shorthand for a violation of the federal mail fraud statute, title 18 United States Code section 1341. (See, e.g., In re Utz (1989)
Slanted reporting, however, does not by itself constitute malice. “Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger; clearly such writing is typically less than objective in its presentation.” (Reader’s Digest, supra, 37 Cal.3d at
The present situation is similar to Annette F. There, the defendant had published a statement that the plaintiff was a “ ‘convicted perpetrator of domestic violence.’ ” (Annette F, supra,
Similarly, any divergence between what Debra told Alnor and what Alnor published demonstrates at most negligence, and therefore it is mere speculation to surmise Alnor knew his statement was false.
3. Alnor’s Mail Fraud Report
Plaintiffs assert Alnor either knew no criminal investigation of plaintiffs existed or harbored doubts that such an investigation existed because he filed a mail fraud report with the Office of Inspector General. Specifically, plaintiffs argue: “Alnor would not have filed [a mail fraud] complaint if he believed that there already was a criminal investigation pending against Respondents. The fact that Alnor tried to start an investigation is strong evidence of Alnor’s subjective belief that one did not exist at that time.” Although this is a plausible inference, we are not persuaded it is as compelling as plaintiffs contend. An equally reasonable inference is that Alnor filed the report to bolster the existing investigation by providing additional information based on his own research. Absent additional evidence supporting plaintiffs’ position, the inference that Alnor’s filing of a mail fraud report indicated doubts in his mind about an existing investigation amounts to little more than a speculative possibility.
Plaintiffs argue Alnor failed to conduct a thorough investigation because Alnor’s declaration demonstrates he focused chiefly on whether CRTs mail had been misdelivered, not on the post office’s purported investigation of CRTs fundraising letter. Plaintiffs contend Alnor’s failure to focus his investigation on the post office’s mail fraud investigation concerning CRI demonstrated actual malice. We disagree.
Actual malice “ ‘is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ [Citation.] Lack of due care is not the measure of liability, nor is gross or even extreme negligence.” (McCoy, supra,
For example, in Beilenson, supra,
“To support a finding of actual malice, the failure to investigate must fairly be characterized as ‘ “the purposeful avoidance of the truth” ’ or the ‘ “product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges.” ’ ” (Rosenaur v. Scherer (2001)
Plaintiffs argue Alnor had an obvious reason to doubt the accuracy of the information he received, asserting “[i]t was highly implausible that a criminal investigation would have been launched as of the time [Alnor] had the alleged discussions with the USPS employees.” Plaintiffs assert Alnor’s suspicions should have been aroused because Debra informed him an investigation was underway on the same day he discovered the fundraising letter. This argument is specious. Plaintiffs presume that any post office investigation would have been launched solely as a result of Alnor’s complaints. But the fundraising letter was widely distributed to donors at some unspecified point before Alnor began his inquiry. Thus, there is no evidentiary basis to presume Alnor would have been the only catalyst for a post office investigation.
5. Biased Sources
Plaintiffs contend Alnor based his statement on biased and unreliable sources because (a) there is no indication that the employees Alnor spoke with held appropriately responsible positions to comment on a mail fraud investigation; (b) Alnor received no indication the employees had any familiarity with the subject; and (c) “it was obvious that any response from the employees would be biased when asked in essence whether they lost CRTs mail.” None of these factors is sufficient to demonstrate Alnor doubted the reliability of his sources.
For example, Alnor reached “Debra” by calling the regional postal inspector’s office. Her comments demonstrated knowledge of the issue, and she acknowledged her office had launched an investigation into the matter. Although Alnor apparently did not obtain Debra’s title or even her last name, there is nothing in the record to indicate Alnor was suspicious of her veracity or doubted her knowledge of the investigation. Moreover, any purported bias by postal employees due to allegations they mishandled CRTs mail would not extend to Debra, whose office apparently had nothing to do with the delivery of CRTs mail. The mere fact that Alnor could have done more to investigate the reliability of his informants is not indicative of malice.
Plaintiffs introduced evidence that Alnor harbored , ill will toward them, arising in part from Alnor’s purported termination from CRI. Plaintiffs assert that “Alnor’s mind was so infected with ill-will, he only saw the worst and the opportunity to spin the situation and create negative publicity for CRI.” That Alnor’s objectivity and judgment may have been impaired by hostility toward plaintiffs does not by itself demonstrate malice.
A court may consider a defendant’s anger or hostility toward a plaintiff in determining the presence of malice only to the extent it impacts the defendant’s actual belief concerning the truthfulness, of the publication. (Reader’s Digest, supra,
We conclude that plaintiffs have not demonstrated Alnor acted with actual malice by clear and convincing evidence. We recognize the actual malice requirement places a substantial barrier to defamation claims brought by a public figure, particularly at this early stage of the proceeding. This barrier, however, was erected in recognition that “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive . . . .’ ” (Sullivan, supra, 376 U.S. at pp. 271-272.) Our nation’s highest court has recognized: “This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures.” (Gertz, supra, 418 U.S. at pp. 342-343.)
The actual malice requirement has been imposed on public officials and public figures in part because such persons “usually enjoy significantly greater access to the. channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” (Gertz, supra,
This is not to say one may slander a public figure with impunity. The actual malice barrier, although formidable, is not insurmountable. We note that plaintiffs might have met their burden, for example, by submitting a declaration from an official at the Pasadena postal inspector’s office that no one named Debra worked there during the time in question, or a declaration from Debra stating she spoke with Alnor but did not tell him her office was investigating the CRI letter. (See St. Amant, supra,
IV
Disposition
The order denying Alnor’s special motion to strike is reversed, and the trial court is directed to enter a new order granting the motion and striking the complaint. Alnor is to recover his costs on this appeal.
Fybel, J., concurred.
Notes
SLAPP is an acronym for strategic lawsuit against public participation, first coined by two University of Denver professors. (See Comment, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions (1990/1991) 27 Cal. Western L.Rev. 399.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
As Alnor points out, CRI bills itself as the “largest, most effective apologetics ministry in the world,” receiving over $7 million a year in donations. Plaintiffs also produce “Bible Answer Man,” a nationally syndicated daily radio program reaching millions of listeners every week.
The portion of the Blatty opinion cited by Annette F. on burden of proof reads as follows: “At the threshold, in defamation actions—in which, of course, the alleged injurious falsehood of a statement is the gravamen of the plaintiffs claim—the amendment has abrogated, the common law of strict liability. (Gertz v. Robert Welch, Inc., supra,
Presumably, “Investigations Office” referred to USPS’s national investigation office in Chicago, not its Pasadena office.
Dissenting Opinion
I respectfully dissent.
I wholly agree with my colleagues’ legal analysis. But I differ with their application of the law to the facts in this case. My disagreement goes only to the issue of whether plaintiffs have “established a probability that [they] will prevail on the claim----” (Code Civ. Proc., § 425.16, subd. (b)(3); the entire statute will be referred to as the anti-SLAPP statute (strategic lawsuit against public participation) and all further statutory references are to the Code of Civil Procedure.)
Once it is established that the defendant’s conduct is protected under the anti-SLAPP statute, the plaintiff is charged with the burden “to make a prima facie' showing, by admissible evidence, of facts that would merit a favorable
The fact that the test for a “prima facie showing” is identical to the test for summary judgment was reiterated by our Supreme Court in Taus v. Loftus (2007)
Thus, as would be the case if this were a motion for summary judgment, it is our task to determine whether plaintiffs presented sufficient evidence, contradicted or not, to demonstrate the existence of a prima facie case. There is only one element of plaintiffs’ cause of action where my colleagues concluded plaintiffs were unable to supply such a demonstration: clear and convincing evidence of actual malice. And this is the only point on which our paths diverge.
Since the same standard applies, I approach my analysis of this case as if defendant had moved for summary judgment under section 437c and we, on de novo review, would determine whether the trial court erred in denying such a motion. Under section 437c, subdivision (p)(2), once defendant had met his initial burden, the burden would have shifted to plaintiffs to demonstrate the existence of evidence raising triable issues of fact. But the court may not grant summary judgment “based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (§ 437c, subd. (c).) Also, the court may deny summary judgment “where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness , to that fact. . . .” (§ 437c, subd. (e).) And in making our determination, we may consider all evidence, regardless of which party presented it. (§ 437c, subd. (c).)
Now let us examine the evidence relating to the malice element of plaintiffs’ claim. I can hardly disagree with my colleagues that we “must
Putting plaintiffs’ best case forward and drawing the inferences in their favor, here is what happened: Plaintiffs truthfully advertised the need for additional funds after their mail had been lost due to misdirection. Defendant, motivated by his anger at having been fired by plaintiffs, attempted to embarrass them by asking the post office to conduct a criminal investigation, based on his claim that plaintiffs’ advertisement was untruthful and that no mail had been misdirected. The post office failed or refused to do so. Nevertheless, defendant placed notices on his Web site accusing plaintiffs of falsely advertising the loss of mail and asserting that plaintiffs were the subject of a mail fraud investigation.
I stress that I am not here deciding that this is what really happened. But the evidence could support such a conclusion. And such a conclusion would support a finding of malice based on clear and convincing evidence.
As noted by my colleagues, one of the leading cases dealing with the tension between the First Amendment and the law of defamation is Reader’s Digest Assn. v. Superior Court (1984)