California News Publisher Files SLAPP Suit Against Competing Online Publisher

In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly."

Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW:

This case presents a classic story – a minor local luminary, incensed at bad press, abuses the legal system to lash out at critics, hoping that the ruinous expense of litigation will crush them even if the claim has no merit. Fortunately, California has a robust remedy: California Code of Civil Procedure § 425.16, the Anti-SLAPP Statute (“Section 425.16”). The Court should employ it to strike the complaint in this case, which is utterly meritless.

Rather tellingly, the complaint by Barber doesn't cite a single blog post by Haugh, nor even quote a single statement. It doesn't attach any of the actual posts, which you would kind of expect. Instead, it appears to paraphrase a bunch of things that Haugh's site posted -- mostly as clearly marked opinion -- and takes it out of context in the lawsuit filing:

Now Plaintiffs sue Mr. Haugh, claiming that he’s used the Site to interfere with the SCW’s relationship with Santa Clara, misappropriated the trade name “Santa Clara News online, defamed it and Mr. Barber, and put them in a false light. Plaintiffs’ Complaint is notably and strategically vague. It complaints of false statements, but does not cite or attach even a single blog post or statement, nor does it quote even one statement on the Site. Instead, Plaintiffs claim that Mr. Haugh made the following vaguely defined categories of statements, which Plaintiffs claim are false:

• “[T]hat the 49’ers had bought out the weekly and that the weekly serves as nothing more than a proxy for the 49’ers business interest,”
• “[T]hat Miles Barber is a misogynist and the Weekly’s criticism of the women of the city council were [sic] based on a desire to remove all women from the council,”
• “[T]hat the Weekly was not authorized to publish legal notices,”
• “[T]hat the Weekly’s advertisers do not see a return on investment,”
• “[T]hat Plaintiff has been skipping publication dates,” and
• “[T]hat numerous facts published by the weekly were not true.”

It turns out there are some problems with these allegations. Mostly in that they are misleading or inaccurate:

These vague assertions mischaracterize the actual content of the Site:

• On the Site, in columns explicitly labeled as opinion, Mr. Haugh identified facts underlying his questions about whether the SCW was “serving the needs of the San Francisco 49ers”: that the SCW had run a large 49ers ad nearly every week since 2010, that an associate editor of SCW promoted the 49ers’ sponsorship of her non-profit arts event, and that a Political Action Committee called BluPac associated with the 49ers reprinted stories printed in the SCW.
• The Site has never called Mr. Barber a “misogynist.” It has criticized him for a column in the SCW (Exh. R) in which he derided female City Council members, saying they could “barely spell their name.”
• Mr. Haugh has not asserted that Plaintiffs are unauthorized to print legal notices. Rather, in a guest letter written by Burt Field, Mr. Field explained that he had written to the City Clerk and City Auditor asking questions about whether the SCW met the requirements for legal notices.
• The Site’s sole reference to advertiser “return on investment” in the SCW came from a column – expressly labeled an opinion – in which Mr. Haugh referred to the fact that most of the candidates who advertised in the SCW in the 2016 local election were not elected.
• Contrary to Plaintiffs’ claim, the Site is not aware of any post asserting that the SCW has skipped publication dates.
• Though the Site has questioned factual claims in the SCW, each time it has done s so in opinion pieces that have expressly stated the basis for the question.

So, uh, yeah. That certainly makes it pretty clear that this is a SLAPP suit. There's also this fairly sketchy behavior:

[Haugh's] Site was initially located at stantaclaranews.wordpress.com until Mr. Haugh registered santaclaranews.org on October 27, 2016.... On November 21, 2017, more than a month after Mr. Haugh began publishing the Site under the name “Santa Clara News Online,” Plaintiffs filed a Fictitious Business Name application purporting to lay claim to that name, and in January 2017 published the claim.

Got that? In October, Haugh started publishing Santa Clara Online News. Less than a month later, Barber filed a fictitious business name application purporting that his company was using that name. Then, in the lawsuit, Barber argued that Haugh was "misappropriating" the name. That's... bad. Really bad.

Also, some of the complained about statements come from letters to the editor, which means that Haugh is easily protected under Section 230. This case has all the hallmarks of a standard SLAPP suit, and hopefully the court makes quick work of it thanks to California's anti-SLAPP law. But, really, the most ridiculous part of all of this is why would a news pulisher file such a lawsuit itself, in an age where a free press is under attack? It's incredibly short sighted to try to undermine press freedoms yourself, just because someone made fun of you a little bit online.

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