The opinion is here. The outcome is precisely what I expected after watching the video of the oral argument. It’s a win on one issue, and (for now) a temporary setback on another.
Here are the two obscure issues the panel was considering.
First: did Naffe sufficiently allege that I acted under “color of law” claim under section 1983 by criticizing her as a private citizen on Twitter and my blog? Answer: no. Naffe loses on that issue.
Here is the key passage from the opinion. I am going to remove most of the citations for ease of reading:
Naffe’s § 1983 claim fails under this framework for several reasons. First, Naffe’s factual allegations do not give rise to the reasonable inference that Frey harmed Naffe while on duty or when “exercising his responsibilities pursuant to state law.” Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events. While county prosecutors are sometimes authorized to speak on behalf of their employers, Naffe pleads no facts to support her allegation that the County authorized or encouraged Frey’s
social and political commentary. Indeed, Frey discussed Naffe not on the Los Angeles County District Attorney’s verified Twitter page, but rather on his personal Twitter page and blog, which contain disclaimers that “[a]ll statements are made in [Frey’s] private capacity and not on behalf of [his] employer.” Finally, each Tweet or post cited by Naffe in her complaint is time-stamped very late at night or early in the morning, a fact which undermines her claim that Frey blogged and Tweeted during normal business hours using County resources. [I will also note that the timestamps were not on Pacific time, and therefore seemed later at night than they actually were. — Ed.]
Second, Frey’s comments about Naffe are not sufficiently related to his work as a county prosecutor to constitute state action. Naffe alleges Frey threatened to prosecute her as a way of coercing her to delete O’Keefe’s emails from her smart phone and remain quiet about O’Keefe’s plan to wiretap Representative Waters’s district office. But Naffe does not state any facts to support the allegation that Frey investigated her (or even could have investigated her). Iqbal, 556 U.S. at 678. She does not, for example, allege Frey used his authority to contact law enforcement, open an investigation file, or interview witnesses about Naffe’s involvement with O’Keefe. And a single Tweet in which Frey rhetorically asked “what criminal statutes, if any [Naffe] admitted violating,” does not create a nexus between Frey’s private harangues and his job.
Third, the facts Naffe pleads do not support her claim that Frey “purported or pretended to act under color of [state] law” when he blogged about her. To the contrary, Frey frequently reminded his readers and followers that, although he worked for Los Angeles County, he blogged and Tweeted only in his personal capacity. By contrast, in Anderson, where we found state action, defendant Warner specifically associated his actions with his law enforcement position, claiming to bystanders he was “a cop,” and the assault was “police business.” Here, unlike in Anderson, Frey did not claim to act in his official capacity. For this reason, Frey did not abuse the power given to him by the state to influence or harm Naffe.
And although Frey drew on his experiences as a Deputy District Attorney to inform his blog posts and Tweets, that alone does not transform his private speech into public action. Indeed, if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the “marketplace of ideas.” See City of San Diego, Cal. v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (“[P]ublic employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.”) . . . .
Emphasis is mine.
Second issue: did the District Court err by using a “preponderance of the evidence” standard to determine that she had not proved her damages were more than $75,000? Answer: yes. The correct standard, said the court, was whether the trial court could say to a “legal certainty” that her damages (again, taking her claims as true) could exceed $75,000. That standard makes it very easy for a plaintiff to allege damage, and the Ninth Circuit said she had sufficiently done so.
I have to keep repeating this: the factual allegations in the opinion are stated as if Naffe’s allegations are all true. The appellate court is required to do this. It doesn’t mean her allegations actually are all true. They aren’t.
Ken White has more at Popehat. The key point from the micro-perspective of the lawsuit is this: all the motions we had in play at the time, including an anti-SLAPP motion, are still in play.
But the larger issue is the precedent this decision creates, and one that I am proud to have had a role in. Namely, there is now a published precedent (albeit one that accepts false facts about me as being true) holding that public employees may give opinions about matters of public interest without being hit with a section 1983 lawsuit. (Well, we can always be hit with one, but it won’t go anywhere.)
Thanks very much to Ronald D. Coleman (from Likelihood of Confusion) and Kenneth P. White (from Popehat), who have both worked endless hours on this case. Thanks also to Eugene Volokh, who wrote an amicus brief supporting my position. I can’t find the words to properly thank these gentlemen for all their help on this case (and the one brought by Brett Kimberlin). I hope you will help spread the word about what great men they are, and what a great thing it is that they have done here.