In one matter, a California attorney who had earlier field a federal action against the school district sued Eugenie Scott of the National Center For Science and Education [what! You're not a member?! Join now!] for defamation based on her article in California Wild
He alleges that she didn't accurately state facts relating to the school board activities in that article. Now, it’s not uncommon to attempt to use defamation laws to stifle the public discussion of opposing points of view.
The defamation lawsuit brings up two legal issues:
- Is there any way to short circuit the process and avoid expen$ive and time con$uming court battle$?
- Is there any way to make the loser pay the attorney’s fees and costs for frivolous lawsuits?
Getting a Frivolous lawsuit dismissed early.
The general answer to question #1 is that most legal systems have a means to challenge the complaint itself early in the case. These motions, called demurrers or motions to strike for failure to state a claim, are usually unsuccessful because they must assume for purposes of the motion that he facts in the complaint are true. Unbelievable as it may seem, sometimes plaintiffs and their lawyers sue where there’s no possibility of recovery under any circumstances. Most, however, are clever enough to at least allege “facts” in the complaint to avoid getting immediately dismissed, even if the allegations are exaggerations or false. The significant point is that the complaint, no matter how unlikely factually, is assumed to be true for purposes of ruling on these motions.
The second opportunity to get a suit thrown out before trial is a motion for summary judgment. In this case, the defense can offer evidence that demonstrates that the complaint’s allegations are undisputably false. If the court determines there are no factual disputes—that is the opposing parties agree on the actual facts, then it’s not necessary to hold a trial, the judge can determine the applicable law to the undisputed facts. That’s what happened in the Selman and Aguilard cases.
In California, there is a different method that may terminate the defamation lawsuit. California has a “SLAPP” statute allowing courts to dismiss lawsuits intended to stifle public discussions. The acronym stands for Strategic Lawsuits Against Public Participation. Here are the important sections of the statute:
“Sec. 425.16. Claim Arising from Person's Exercise of Constitutional Right of Petition or Free Speech -- Special Motion to Strike.
(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b) (1) 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…
(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: .... (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
The California Wild article is certainly a “written statement in a public forum in connection with an issue of public interest” as defined by the statute. I also think Mr. Caldwell’s suit is an attempt to chill public discussion through abuse of the judicial process. A SLAPP motion should be successful here. Note that a defendant who is successful on a SLAPP motion can recover attorney’s fees.
Recovering attorney's fees
The answer to question #2 is more complicated. As a general rule in the U.S. legal system each side is responsible for its own attorney’s fees. There are a few exceptions to the general rule. Contracts often have a clause awarding attorneys’ fees to the winning side if a dispute arises over the contract. Certain laws, usually civil rights laws and consumer protection laws allow attorney’ fees to the winning side. Other than these exceptions there is no right to recover attorney’s fees.
Sometimes attorney’s fees are awarded if the lawsuit is clearly “frivolous.” Frivolous” in this sense is a term of art and does not enjoy its meaning as commonly understood. Generally, frivolous means more than “no chance of success” and also included an examination of the plaintiff’s motives. The law does not want to discourage “creative” lawsuits but does want to discourage lawsuits intended to harass a defendant. Frivolous lawsuits therefore have a sense of maliciousness to them. Peloza v Capistrano Unified School District is a good example. The lawsuit was creative in the sense that Peloza attempted to argue that evolution was a religion and requiring him to teach it violated the First Amendment—a creative argument that the court shot down in flames. The court of appeal held that his argument, although a dead bang loser was not frivolous and reversed the trial court’s ruling awarding attorney’s fees to the school district for a frivolous lawsuit. I think the Court of appeals was correct. His lawsuit was creative but not malicious.
The opposite holds true in the recent action against Eugenie Scott and I hope it is thrown on a “SLAPP” motion or deemed frivolous at some later date.