Rehitching the Horse: Oregon Court 
of Appeals Adjusts the Anti-SLAPP Cart

Although Oregon is in its 15th year of anti-SLAPP litigation under a decidedly robust statute, no Oregon appellate court had ruled on how to decide when Oregon's anti-SLAPP statute applies until the recent decision in Mullen v. Meredith Corporation, 271 Or. App. 698 (2015). In that matter of first impression, the Oregon Court of Appeals corrected the "cart before the horse" approach taken by the trial court, which had ruled that a claimed tortious broadcast was not "protected speech" and thus did not fall within the scope of the anti-SLAPP statute.

Background 

The plaintiffs, a state penitentiary guard and his wife, brought four claims arising out of a television news broadcast concerning gunfire in their neighborhood. The guard alleged that he allowed a reporter to film from his property on the condition that his image not be used in the news broadcast. He said he told the reporter he had received death threats from current and former inmates and needed to keep the location of his home unknown.

The initial evening news broadcasts did not include the guard's image, but a subsequent morning news report was recut, and that version showed plaintiff outside his home for several seconds. The guard alleged that colleagues and multiple inmates saw him on television and that one inmate told plaintiff he now knew where he lived. Plaintiffs immediately left and put their home up for sale.

Plaintiffs sued defendants for: (1) breach of contract, based on a promise not to show plaintiff in the news report; (2) negligence, based on the broadcast of plaintiff's image; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress.

Defendants moved to strike the three tort claims under the state's anti-SLAPP law, ORS 31.150 et seq. The trial court denied the motion, finding that the anti-SLAPP statute did not apply to plaintiffs' claims, and defendants appealed.

Court of Appeals Decision 

Step One: Applicability

Among other matters, Oregon's anti-SLAPP statute broadly applies to "any claim in a civil action that arises out of … any … conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest." The trial court framed the issue of whether the anti-SLAPP statute should apply in terms of "whether defendants were entitled to show [plaintiff's] 'likeness,' identity and location as part of the news broadcast." The court concluded that showing the plaintiff was "not necessary" in order to convey the news. The court added that showing him, which was additionally a breach of contract, could not be "in furtherance of the exercise of … the constitutional right of free speech" because it was illegal and tortious. Showing plaintiff could not, therefore, be "protected speech" to which anti-SLAPP applies. Finally, the court concluded that plaintiff was not a public figure so showing him could not be "in connection with a public issue or an issue of public interest."

In reversing the trial court, the Court of Appeals found:

"[A]t plaintiffs' urging, [the court] narrowed the focus [of whether the anti-SLAPP statute applied] to the specific portion of defendants' conduct that plaintiffs found objectionable. With respect, that inquiry puts the proverbial cart before the horse."

In other words, whether speech or conduct is actionable is a matter for the second step of analysis under the anti-SLAPP statute, not the first step concerning applicability. The appellate court held that the trial court's consideration of whether the objected-to speech was "necessary" was not proper. Similarly, the trial court's consideration of whether plaintiff was a public figure was misguided and not itself probative of whether the anti-SLAPP statute applied. Instead, the appellate court noted, "as plaintiffs conceded, and the trial court recognized, 'the news reports of the shooting constitute an issue of public interest.'" The court held that "it follows that plaintiffs' claims arise from conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest."

Analysis of the trial court's ruling shows that it was confused by the frequently repeated appellate court statement that anti-SLAPP statutes apply only to "protected speech." Some trial judges, as here, have believed they must first determine whether all of the speech in question is "protected," that is, nonactionable, in order to decide whether the statute applies. That inquiry would make step-one analysis superfluous and would put "the cart before the horse," as the appellate court noted.

Confusion arises from the imprecise use and understanding of the phrase "protected speech." Anti-SLAPP statutes set out categories or kinds of speech to which the statutes apply. Those kinds of speech are "protected" in the sense that the special mechanism of anti-SLAPP analysis applies to them and accordingly claims may be quickly dismissed, often before discovery and with attorney fee assessments. Step-one analysis does not ask whether all speech at issue is "protected" in the sense of being "nonactionable," only whether the speech is of the kind described, to which anti-SLAPP analysis applies.

Step Two: Probability of Success Regarding the Tort Claims 

The decision in Mullen is the first Oregon appellate decision to reverse a trial court decision that the anti-SLAPP statute did not apply to the speech in question. Because of its initial decision, the trial court did not reach the second issue of whether plaintiffs had established "a probability that [plaintiffs would] prevail on a claim by presenting substantial evidence to support a prima facie case." In ruling on a second issue of first impression, the appellate court held that because "that question was fairly presented to the trial court"—even though that court did not reach the question—"and the record was sufficiently developed to enable … review," the appellate court could proceed to answer the "probability," or second-step question.

The appellate court first set out the bases for this analysis. First, a court accepts as true all evidence favorable to the plaintiffs. Second, it considers the supporting and opposing affidavits submitted by both parties, but it does not weigh plaintiffs' evidence against defendants'. Third, it considers defendants' evidence and argument "only to determine if it defeats plaintiff[s'] showing as a matter of law." Applying these standards, the court of appeals determined that plaintiffs had not established a prima facie case regarding any of the three tort claims; that is, plaintiffs had not provided evidence to support every element of any of the claimed torts.

Of particular interest, the court found that plaintiffs would need to have evidence of a "special relationship" between plaintiffs, on the one hand, and the station and reporter, Mark Hanrahan, on the other, in order to proceed with either the negligent publication or the negligent infliction of emotional distress claim, absent allegation of personal injury. As the court explained:

Here, defendant Hanrahan and plaintiff were strangers to each other before the agreement, which was limited to the term that defendants could come onto plaintiffs' property if they agreed not to air plaintiff's likeness. That agreement did not form a special relationship; defendants were not acting as plaintiffs' agents, and plaintiffs did not relinquish control of matters to defendants that required them to exercise independent judgment on plaintiffs' behalf. That is so because plaintiffs could not relinquish control of an activity—filming, editing or broadcasting a news report—that they never had in the first place. Thus, defendants did not owe a heightened duty to plaintiffs that would support a claim for noneconomic damages absent a personal injury.

Similarly, plaintiffs' claim for intentional infliction of emotional distress failed because they could present no evidence that defendants intended to harm them. "At most, defendants unreasonably failed to make all of their employees aware of the promise made to plaintiff and to prevent the harm that could follow from breaking that promise."

The appellate court dismissed the three tort claims and remanded to the trial court for consideration of the contract claim only. While plaintiffs' tort claims were for $1.5 million, the smaller amount they could obtain under the contract claim was less than the amount of attorney fees that were likely to be awarded against them; an award of reasonable attorney fees to a prevailing movant is mandatory under Oregon's anti-SLAPP statute. As a result, the matter quickly ended when plaintiffs agreed to dismiss all claims with prejudice and without payment to any party.

Derek Green is Counsel and Duane Bosworth is a partner in Davis Wright Tremaine LLP's Portland, Ore., office. DWT represented Meredith Corporation in this litigation.