Metropolitan News-Enterprise


Thursday, August 3, 2023


Page 3


Ninth Circuit:

Defamation Action by CLU Students, Coaches Accused of Racial Insensitivity Was SLAPP


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reversed an order denying an anti-SLAPP motion brought by leaders of California Lutheran University who, in emails, criticized 24 members of the women’s softball team and three of their coaches for racial incenstiivity based on a performance by the students, lip-syncing the theme song from “The Fresh Prince of Bel-Air,” with make-up that resembled blackfacing.

A video was posted on social media, but then withdrawn. Campus officials made such statements as saying that “students were recorded doing performances in which there were exaggerated characterizations of black people and culture,” to which many took offense. A reference was made to a “racist incident.”

The plaintiffs sued for defamation and false light.

Judge Reversed

District Court Judge Josephine L. Staton of the Central District of California correctly determined that the defendants’ comments on an issue of public interest was protected conduct, satisfying the first prong of California’s anti-SLAPP statute, Code of Civil Procedure §425.16, a three-judge panel said Tuesday in a memorandum opinion.

However, they declared, Staton erred in finding that the defendants failed to satisfy the second prong: a showing of a probability of prevailing on the merits.

The panel—composed of Circuit Judges Salvador Mendoza Jr. and Gabriel P. Sanchez, joined by District Court Judge Brian A. Jackson of the Middle District of Louisiana, sitting by designation—declared:

“A claim for defamation is not actionable when it involves a privileged publication…, and defendants contend that the allegedly defamatory statements are privileged under the common-interest privilege….

“The common-interest privilege applies here because the statements by  CLU’s leadership were made to the campus community, who share an interest in  addressing matters of racism and racial justice as it pertains to student groups and  campus activities.”

Lack of Malice

They added:

“Plaintiffs have not plausibly alleged actual malice by any defendant  sufficient to defeat the common-interest privilege.”

For the same reasons, the judges said, the false-light claim, based on the same allegations, must fall.

One coach, Debby Day, sued under California’s Unfair Competition Law (“UCL”). The panel said:

“Coach Day has not alleged any concrete economic injury arising from defendants’ allegedly unfair practices. Her allegation that she ‘lost money’ in the form of ‘compensation’ is conclusory, and without more, insufficient to establish standing to pursue her UCL claim.”

The case is Day v. California Lutheran University, 22-55825.Copyright 2023, Metropolitan News Company