This defamation case arises from a city council meeting in California about that state's sanctuary-state law, at which the plaintiff, a private citizen, spoke out against the law and a social media activist used a photograph of the plaintiff to make it look like she was yelling racist remarks at her, comparing her to the segregationists in 1957 Little Rock. Cable TV personality Joy Reid posted the manipulated photo online and implied that the plaintiff is a racist. Reid later apologized publicly for the mistake. Plaintiff sues Reid in New York federal court.
The case is La Liberta v. Reid, issued on July 15. First, we have the California anti-SLAPP law, which is short for "strategic lawsuit against public participation," which in California allows the court to dismiss the defamation case if the speech is protected under the First Amendment. New York's SLAPP law does not have this provision. In California, the SLAPP is an affirmative-defense to the lawsuit, authorizing the defendant to file a "motion to strike." The problem for Reid is that this unique procedure under California law is not consistent with the procedure for motions to dismiss in federal cases (Rule 12) or motions for summary judgment (Rule 56).
Rule 12 cannot authorize this procedure because the SLAPP motion to dismiss allows the defendant to win if she can show her success in the case is "probable." Under Rule 12, the standard is whether the plaintiffs likelihood of success is "plausible." In our world, these are significantly different legal standards. It may work in California, but not in federal court, as other Circuits have held in similar cases. Nor can Rule 56 authorize this procedure, as summary judgment is not warranted if the plaintiff identifies a genuine issue of material fact for trial. Under the California SLAPP law, the defamation case is dismissed unless the plaintiff shows it is likely and not merely possible that she will prevail. Again, two different standards. If this case is going to be dismissed, it cannot be pursuant to the defendant-friendly California SLAPP rule.
So what about the defamation case? The district court dismissed the case, holding that plaintiff was a "public figure" and therefore has to prove Reid made her false statements with malice. You can even be a limited purpose public figure if you are voluntarily thrust into a public controversy. That's how Reid argues that plaintiff cannot win. But while plaintiff spoke at multiple city council meetings about the sanctuary state issue, and even had her photo in the newspaper, "that is not nearly enough" to increase her burden to win this case, the Court of Appeals (Jacobs, Kearse and Cabranes) rules. The newspaper photo did not identify plaintiff, and speaking at only eight meetings around the state does not make her a regular media presence. Otherwise, everyday citizen speech would be chilled for fear of lawsuits like this. While plaintiff did become more of a media presence to defend her reputation after she was called a racist, the Court of Appeals will not use that to retroactively turn her into a limited public figure.
Finally, the district court dismissed the defamation case, ruling that Reid's comments were protected "opinion" under the First Amendment. Not so, says the Court of Appeals. "Accusations of concrete, wrongful conduct are actionable while general statements charging a person with being racist, unfair, or unjust are not." That's based on California law. The Court of Appeals says that the photo that Reid had posted (which someone else created), comparing plaintiff with the white woman in the 1957 Little Rock photograph yelling at the black schoolgirl, could be understood to accuse plaintiff of engaging in misconduct, which can be proven true or false, unlike nonactionable opinion, such as if Reid had called her a racist.