Friday, January 17, 2019
Court of Appeal:
Judge Properly Granted Anti-SLAPP Motions In Black-Balled Blogger’s Suit Against Times
Grimes Says Newspaper’s Expressions of Doubt as to Truthfulness of Account Of Encounter With LAPD Officer Is Protected by ‘Fair Report’ Privilege
By a MetNews Staff Writer
The Court of Appeal yesterday affirmed anti-SLAPP orders obtained by the Los Angeles Times Communications LLC and four of its employees in a suit brought by its former blogger after the newspaper published statements questioning the accuracy of his claims that he was arrested, handcuffed and roughed up by a police officer in connection with being ticketed for jaywalking.
The disavowal of the May 11, 2015 post on The Times’ “OpinionLA blog” by cartoonist/blogger Ted Rall was protected by the “fair report” privilege, Justice Elizabeth Grimes of this district’s Div. Eight said, in an opinion affirming orders by Los Angeles Superior Court Judge Joseph R. Kalin. Employment claims based the Times’s decision to publish no more of his cartoons or blogs, Grimes said, are protected by the First Amendment.
Rall’s blog came at a time when the newspaper was questioning the fairness of tickets carrying high fines being issued to persons of meager means based on minor offenses as pedestrians. In the blog that generated the controversy, Rall said:
“This one is personal.
“Just over 10 years ago, I was ticketed—and handcuffed—for an alleged pedestrian violation while crossing Melrose Avenue.”
He insisted it was “one of the rare times that I was innocent of even jaywalking, something I do every day,” continuing:
“All of a sudden, a motorcycle officer zoomed over, threw me up against the wall, slapped on the cuffs, roughed me up and wrote me a ticket. It was an ugly scene, and in broad daylight it must have looked like one, because within minutes there were a couple of dozen passersby shouting at the cop.
“Another motorcycle officer appeared, asked the colleague what the heck he was thinking and ordered him to let me go, which he did. But not before he threw my driver’s license into the sewer.
“I filed a formal complaint with the Los Angeles Police Department. A few months went by without my hearing anything, so I called to check in. I was told that the complaint was dismissed. They had never notified me.”
He went on to rail against ticketing practices of the Los Angeles Police Department (“LAPD”).
The LAPD protested to the Times and provided documentation of its allegation that Rall’s account of the incident included fabrications.
On July 28, 2015, the Times published a comment under the heading “FOR THE RECORD,” signed by Nicholas Goldberg, the editor of the editorial pages. Goldberg related:
“[T]he Los Angeles Police Department has provided records about the incident, including a complaint Rall filed at the time. An audiotape of the encounter recorded by the police officer does not back up Rall’s assertions; it gives no indication that there was physical violence of any sort by the policeman or that Rall’s license was thrown into the sewer or that he was handcuffed. Nor is there any evidence on the recording of a crowd of shouting onlookers.
“In Rall’s initial complaint to the LAPD, he describes the incident without mentioning any physical violence or handcuffing but says that the police officer was ‘belligerent and hostile’ and that he threw Rall’s license into the ‘gutter.’ The tape depicts a polite interaction.
“In addition, Rall wrote in his blog post that the LAPD dismissed his complaint without ever contacting him. Department records show that internal affairs investigators made repeated attempts to contact Rall, without success.”
Goldberg noted that Rall stands by his account and discounts the recording as being of poor quality with portions that were inaudible.
“However, the recording and other evidence provided by the LAPD raise serious questions about the accuracy of Rall’s blog post,” he commented. “Based on this, the piece should not have been published.
“Rall’s future work will not appear in The Times.”
On Aug. 19, 2015, the Times carried a piece bearing the headline, “Times reaffirms decision that Ted Rall’s blog post did not meet its standards.” It detailed its own investigation and that of the LAPD and reached this conclusion:
“The Times continues to have serious questions about the accuracy of Rall’s blog post.”
Rall sued the company that operates the Los Angeles Times, the newspaper’s then-publisher, Austin Beutner (now superintendent of the Los Angeles Unified School District), Goldberg, and two others.
In granting anti-SLAPP motions in connection with the allegation that the Times’s Aug. 19, 2015, comments were defamatory, Kalin said:
“The report merely stated the conclusion of the [LAPD] investigation, that [plaintiff’s] complaint was unfounded, and reviewed the evidence it was given by the LAPD, which the LAPD used in the investigation, and the logs of attempted communications with plaintiff during the investigation. There is no dispute that the materials reviewed were given to the Times by the LAPD. Plaintiff lacks evidence that the note and article reported falsely on this evidence as received. This is privileged.”
In her opinion yesterday, Grimes said, addressing the defamation claims, that the first prong of the anti-SLAPP motion—that the action stems from comments in a public forum on a matter of public interest—is clearly satisfied. With respect to the second prong, whether the plaintiff can show a probability of prevailing on the merits, she wrote, with italics added:
“Defendants contend, and we agree, that the Times articles were absolutely privileged under Civil Code section 47, subdivision (d)....Under that provision (the fair report privilege), a publication is privileged if it is made ‘[b]y a fair and true report in…a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof....’ ”
“Here, the focus of the Times articles was the accuracy of material published on its website, and central to that issue was the 2001 LAPD investigation of plaintiff’s complaint to the LAPD about his 2001 jaywalking arrest. That pivotal issue included the description of the complaint plaintiff made about his jaywalking arrest, the LAPD’s investigation of the officer’s conduct during the arrest, and the officer’s recording of the incident, revealing the differences between the facts found by the LAPD and plaintiff’s own version of the incident. That was a report on a ‘public official proceeding’—the LAPD’s investigation of plaintiff’s complaint about his jaywalking arrest. The reporting on that subject is the basis for plaintiff’s defamation claim, without which there would be no claim. And the authorities are clear that a police investigation is a ‘public official proceeding’ within the meaning of section 47(d).”
Rall insisted that neither of the Times’s pieces was a “fair and true report” of official files but, rather, an account of the newspaper’s own investigation. He pointed to the 2012 case of Hawran v. Hixson (2012) where the Fourth District’s Div. One held that a press release by a private company recounting what it found in an internal investigation did not come under the privilege.
Case Is Inapposite
The case does not help Rall, Grimes said, explaining:
“Both Times articles report fully on the LAPD investigation of plaintiff’s complaint. And the complaint and the information revealed by the LAPD investigation (including the audio recording of the incident), as reported in the Times articles, are at the center of plaintiff’s defamation claims.”
The jurist rejected the blogger’s suggestion that if the privilege does attach to portions of the articles, those segments relating to the Times’s own probe be segregated and found not to be privileged. She said:
“We do not think the fair report privilege can be lost by virtue of the inclusion of material that is integral to the subject of the Times articles.”
In connection with Rall’s employment-related causes of action, Grimes declared that it is “clear that a newspaper’s decision to publish or not to publish a contributor’s work is protected by the First Amendment.”
She said it is true that Times is not at liberty to fire employees in violation of the Fair Employment and Housing Act or other provisions “under the guise of free speech,” adding:
“But absent some illegal basis for the decision, The Times may fire an employee for any reason or no reason. That is the nature of at-will employment.”
Grimes observed that Rall “has identified no constitutional or statutory provision that would support his assertion of a public policy violation.”
The case is Rall v. Tribune 365 LLC, 2019 S.O.S. 321.
Beverly Hills attorney Roger A. Lowenstein and Rolling Hills Estate lawyer Jeffrey Lewis represented Rall. Attorneys for the defendants were Kelli L. Sager, Rochelle Wilcox, Dan Laidman, Diana Palacios of Davis Wright Tremaine and in-house counsel Jeff Glasser.
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