[VAR & VSEA} REPLY TO ANSWER TO PETITION FOR REVIEW
"INTRODUCTION
The Answer To Petition For Review reinforces why this case is so right for Supreme Court review. The Petition raises four important and timely free speech issues that have elicited conflicting rulings in the Courts of Appeal. The Answer gives thoughtful responses on the merits of those issues, which bodes well for a fruitful review process, and two of the additional issues raised by the Answer are equally important and timely. The issue whether an anti-SLAPP appeal stays discovery and trial is now festering in the trial courts, as demonstrated by the amicus curiae letters lodged in this case. The Internet defamation issues are vital to the continuation of the Internet as an open and uncensored forum. And the Courts of Appeal cannot agree on the proper scope of Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121. The time is ripe for this court to address these issues.
This Reply does not respond to the Answer's arguments on the merits of the issues presented for review. The time for that will be in briefing on the merits, if review is granted. Here we respond only as we should - to the Answer's arguments as to whether review is "necessary to secure uniformity of decision or to settle an important question of law." (Cal. Rules of Court, rule 28(b)(1).)
LEGAL DISCUSSION
I.
THE ISSUES PRESENTED IN THE PETITION
A. The jurisdictional issue is review-worthy because the Court of Appeal's decision undermines the right of appeal from an anti-SLAPP ruling.
1. This issue is already festering in the trial and appellate courts.
Respondents underplay the "likely impact" of the Court of Appeal's jurisdictional ruling - that an appeal from an anti-SLAPP order does not stay trial court proceedings - by suggesting that, because of the "extreme" facts of this case, "the ruling's implications are minimal." (APFR 6-7.) That suggestion is belied by the unsolicited letters of amici curiae. Some of the amici are now mired in disputes where plaintiffs are asserting this Court of Appeal decision, at both the trial and appellate levels, as a basis for ongoing discovery and trial during the pendency of anti-SLAPP appeals. (See letters of McNaughton Newspapers (by Riegels Campos & Kenyon LLP), Palomar Pomerado Health (by DiCaro, Coppo & Popcke), and Cyrus M. Sanai.) Others fear proliferation of this tactic and consequent undermining of the utility of an appeal from an anti-SLAPP ruling. (See letters of California Anti-SLAPP Project (by Mark Goldowitz), California Newspapers Publishers Association (by Levy, Ram & Olson LLP), Lewis Brisbois Bisgaard & Smith LLP, Yvonne M. Renfrew, and James J. Moneer.) All know what is coming if review is denied: widespread exploitation of the Court of Appeal's reasoning as a new tactic in the plethora of anti-SLAPP litigation now proliferating in California's trial courts.
Some of the amici suggest depublication instead of review. But depublication will not make this problem disappear. The Court of Appeal's opinion has been widely publicized and will be accessible on Lexis and Westlaw even if depublished. Its reasoning can and will be exploited even if the opinion itself becomes unciteable. There is no limit to the ingenuity of SLAPP plaintiffs. They can be counted on to add this argument to their arsenals and exploit it as far as each individual trial judge allows - unless review is granted.
2. There plainly is a split of authority.
Respondents also claim "there is no split of authority" between the Court of Appeal in this case and the court in Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1190. (APFR 7.) That is wishful thinking. The Court of Appeal here said: "To the extent that Mattel may be read as holding that trial is automatically stayed in all cases where defendants have appealed the denial of an anti-SLAPP motion, we respectfully disagree." (Typed opn., p. 38, fn. 16, italics added.) That is as plain and straightforward as disagreement gets. That the facts of the two cases differ, as respondents point out (see APFR 6-8), does not vitiate the disagreement on the point of law being adjudicated. And the appearance of the split of authority in a footnote makes it no less a split.
B. The defamation issues are review-worthy because the Internet is a new world of free speech raising novel questions of great importance.
1. The rise of the "flame war" calls for rethinking the law of defamation as applied to the Internet.
Respondents say there is nothing new about the Internet that calls for rethinking the law of defamation as applied to the Internet. (APFR 16.) How wrong they are. The Internet has spawned something completely new: the "flame war."
A flame war is an Internet message-board phenomenon in which "disagreeing speakers lash out at each other by spewing forth in vitriolic and ad hominem attacks." (Sanford & Lorenger, Teaching An Old Dog New Tricks: The First Amendment In An Online World (1996) 28 Conn. L.Rev. 1137, 1143, fn. 23.) Flame wars have quickly become ubiquitous in cyberspace. (See, e.g., Major, Norm Origin and Development In Cyberspace: Models of Cybernorm Evolution (2000) 78 Wash. U. L.Q. 59, 85 ["due to a certain amount of anonymity that cyberspace affords, flaming has become a popular form of expression for many users"]; Weng, Type No Evil: The Proper Latitude Of Public Educational Institutions In Restricting Expressions Of Their Students On the Internet (1998) 20 Hastings Comm. & Ent. L.J. (Comm/Ent) 751, 810 (hereafter Weng) ["This anonymity and ease of 'speaking' on the Internet have also dulled senses of decor in that it is more commonplace and even accepted to be rude and insulting. A term called 'flaming' has even sprung into being; it indicates a vicious tongue-lashing"]; Temple, Marching Bandwidth: Advancing Information Exchange At Stability's Expense (1995) 6 J. Contemp. Legal Issues 409, 421 [disputes "often escalate into absurd 'flame wars,' in which masses of messages filled with exaggerated ill will are exchanged"].) The phrase has even made its way into recent dictionaries. (See, e.g., Merriam-Webster's Collegiate Dict. (11th ed. 2003) p. 475, col. 1 [defining "flame" as "to send an angry, hostile, or abusive electronic message"].)
The Internet is different.
We do not claim, as respondents would have it, that "Internet postings are immune from defamation liability." (APFR 17.) We assert only that the unique features of Internet message boards render statements in a "flame war" incapable of being taken as truth by the average reader. (See PFR 18-19.)
The legal commentators agree: "[A] flame is a common way to vent on the Internet, even among grown-ups and Harvard professors. People say things on the Internet they wouldn't say otherwise. In turn, people do not treat what they read, hear, or receive on the Internet the same way they would something told them in-person, on the phone, in a letter or that they read in a newspaper or see on television." (Weng, supra, 20 Hastings Comm. & Ent. L.J. (Comm/Ent) at p. 810, citations and internal quotation marks omitted.) The point is that "in the context of a 'flame war,' it would be unreasonable for anyone to believe that the facts asserted in this war were true and not hyperbole." (Hadley, The Gertz Doctrine and Internet Defamation (1998) 84 Va. L.Rev. 477, 498.)
The Petition cites four recent cases that also agree, holding that anonymous hyperbolic statements in the context of a flame war on an Internet message board did not constitute defamation because the average audience would not take the speech to contain provably true statements of fact. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1013; SPX Corp. v. Doe (N.D. Ohio 2003) 253 F.Supp.2d 974, 981-982; Rocker Mgmt. LLC v. John Does 1 Through 20 (N.D.Cal., May 29, 2003, No. MISC-03-003-3-CRB) 2003 U.S.Dist. Lexis 16277, *3-8; Global Telemedia Intern., Inc. v. Doe 1 (C.D.Cal. 2001) 132 F.Supp.2d 1261, 1267; PFR 18-19.)
But here, the Court of Appeal disagreed, holding that "[e]ven if the exchange that takes place on these message boards is typically freewheeling and irreverent, we do not agree that it is exempt from established legal and social norms. The Internet may be the 'new marketplace of ideas,' but it can never achieve its potential as such unless it is subject to the civilizing influence of the law." (Typed opn., p. 8.) The line is clearly drawn for this court to decide between the Sixth District minority view, which would attempt to bring a "civilizing influence" to flame wars, and the majority view that the Internet requires breathing space.
2. Review is necessary to resolve conflicts regarding public-figure determinations for criticism of publicly-traded corporations.
Respondents rely, as did the Court of Appeal, on Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, a case involving speech about a small private company, for the proposition that statements about publicly-traded corporations like Varian do not automatically implicate issues of public concern. (APFR 22; typed opn., pp. 21-22.)
The California Newspapers Publishers Association's amicus letter demonstrates the serious problems posed by this expansion of Vegod to publicly-traded corporations. (See letter of California Newspapers Publishers Association (by Levy, Ram & Olson LLP).) These 500 publishers are rightly concerned that the "opinion's narrow construction of 'public figure' status in the context of a large publicly-traded corporation" may chill their ability to report critically on the activities of public corporations. (Ibid.)
Recent authority holds, in the context of the anti-SLAPP statute, that statements on Internet message boards about publicly-traded corporations concern a public issue. (See ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at pp. 1007-1008; Global Telemedia Intern., Inc. v. Doe 1, supra, 132 F.Supp.2d at p. 1265.) The Court of Appeal found this authority inapposite. (Typed opn., p. 20.) Review is needed to resolve this apparent conflict and make plain that people who criticize public corporations will receive the highest possible protection for their speech.
3. The Court of Appeal's opinion conflicts with federal constitutional requirements for reviewing the record on defamation appeals.
In our briefs in the Court of Appeal, we analyzed each of the eleven categories of statements the trial court instructed the jury could be defamatory, setting forth specific language of exemplary posts and including numerous authorities for why the statements were not defamatory. (See AOB 37-43; ARB 14-20.) We further argued that if some but not all of the categories of statements were protected speech, a new trial would be required to focus solely on the remaining statements. (AOB 43; ARB 20.) The Court of Appeal disagreed, saying: AWe have identified a great number of messages that could have been construed as libelous within the limits the court set. Although the better practice might have been to have the jury identify the particular statements it found to be defamatory, our review of the whole record satisfies us that even if there were some messages that were protected opinion or rhetorical hyperbole, the jury did not rest its verdict upon them." (Typed opn., pp. 9, 13.)
Thus, the Court of Appeal reviewed the record by simply looking for any evidence to support the verdict. That approach conflicts with the requirements set by the United States Supreme Court for rigorous review of the factual basis underlying a defamation judgment. (See Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503-505 [104 S.Ct. 1949, 80 L.Ed.2d 502]; Hurley v. Irish-American Gay Group of Boston (1995) 515 U.S. 557, 567-568 [115 S.Ct. 2338, 132 L.Ed.2d 487]; Franklin v. Leland Stanford Junior University (1985) 172 Cal.App.3d 322, 330.)
Review is needed to make plain that appellate courts must rigorously examine the entire record in defamation cases and cannot, as respondents suggest, simply uphold defamation judgments "so long as the record contains at least some defamatory postings" (APFR 21).
4. The uniquely ephemeral nature of Internet speech requires clarification whether Internet defamation is libel or slander.
Respondents are right that the question of statutory interpretation presented here - whether Internet defamation is libel or slander - is "simple." (APFR 18.) The answer, however, is not so simple. California's defamation statutes are rooted in a bygone era, when people communicated by word of mouth, in handwriting, and in books, newspapers and magazines. The statutes have not been amended since the golden age of radio and the early days of television. The Internet is not easily pigeonholed into any of these media. It is something new - visual, yet ephemeral. Absent an authoritative determination of how Internet defamation is statutorily classified - as libel or slander - the point will remain murky and it will be unclear whether Internet defamation that causes no special damages is actionable.
C. The prior restraint issues are review-worthy because of confusion in the Courts of Appeal regarding the proper scope of Aguilar v. Avis Rent A Car System, Inc.
This court's grappling with the law of prior restraint in Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121, has left unclear the extent of Aguilar's application outside the workplace, and has led courts and litigants to conflicting conclusions. Some, like respondents here and the Court of Appeal in Cochran v. Tory, No. S121121 (pet. for review filed Dec. 8, 2003), think the plurality opinion in Aguilar "has a broad reach" (APFR 24) beyond the workplace. Others, like us and the Court of Appeal in the present case, read Aguilar much more restrictively. (See typed opn., p. 29 ["None of the reasoning used to support the injunction in Aguilar applies in this case"].) And even here the Court of Appeal seems to have been confused, overturning some of the portions of the injunction prohibiting future speech but leaving others intact. (See PFR 29-32.)
On this point we stand with respondents, who agree that the proper scope of Aguilar is an "important issue" which merits Supreme Court review to resolve confusion in the Courts of Appeal. (APFR 24.)
II.
THE ADDITIONAL ISSUES PRESENTED IN THE ANSWER
A. The law is well settled that a void order can be appealable.
Respondents seek review of four additional issues. The first is whether an appeal lies from an order denying an untimely anti-SLAPP motion. (APFR 2, 8-10.)
This issue is already resolved by the well-settled principle that where the law allows an appeal from an order, the order is appealable even if void for lack of jurisdiction, e.g., because the underlying motion was untimely. (Phelan v. Superior Court (1950) 35 Cal.2d 363, 366.) There is no need for review.
Respondents cite a single case where the court said an appeal from an order on an untimely motion "cannot lie" and thus dismissed the appeal. (Horton v. Jones (1972) 26 Cal.App.3d 952, 955, 960; see APFR 10.)1/ However, as Witkin explains: "Occasionally, an appellate court overlooks the principle [that a void order can be appealable] and concludes that, if the trial court had no jurisdiction over the cause, the appellate court lacks appellate jurisdiction and should dismiss the appeal. . . . [T]his is improper in practice as well as unsound in theory. The correct procedure is to reverse the void judgment . . . ." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, ' 19, p. 80.) Horton is one of those occasional aberrant cases.
Respondents also discuss two recent opinions holding that an anti-SLAPP motion may be filed, as was done here, within 60 days after service of an amended complaint. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313-315; Lam v. Ngo (2001) 91 Cal.App.4th 832, 835.) Respondents do not dispute these holdings, but simply claim they should not be Aapplied too broadly" - that is, to the present case because "the amended complaint added no new claims." (APFR 9.) But anything other than the bright-line rule prescribed by Yu and Lam would spawn collateral litigation to determine whether an amended complaint changes the action enough to permit an anti-SLAPP motion B hardly a welcome development in a field of law already rife with uncertainty.
1/ The other case respondents cite on this point is actually contrary to their position, because the court did not dismiss the appeal but affirmed the judgment. (Ehrler v. Ehrler (1981) 126 Cal. App.3d 147, 153, 155; see APFR 10.)
B. The law is well settled that a summary denial of a writ petition does not establish law of the case.
Next, respondents seek review of the issue whether the summary denial of appellants' supersedeas petition - which sought enforcement of the automatic stay of trial court proceedings resulting from appellants' anti-SLAPP appeal - established law of the case precluding the current assertion of the stay issue. (APFR 2, 10-13.)
Again, this point is already resolved by a well-settled principle: "A summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason." (Kowis v. Howard (1992) 3 Cal.4th 888, 899.) The two cases cited by respondents for a contrary proposition (see APFR 11) predate and are superseded by Kowis, which overruled prior authority affording law-of-the-case effect to summary dismissal orders. (See Kowis v. Howard, supra, 3 Cal.4th at p. 901.) Again, there is no need for review.
Respondents claim the rule should be different where, as here, the writ is not discretionary, so that - according to respondents - the sole possible ground of a summary denial is on the merits. (APFR 11-12.) But Kowis rejected this sort of reasoning: "The 'sole possible ground' exception leads to unnecessary litigation. If each summary denial must be parsed to determine if it was necessarily on the merits, or if there was some other possible explanation, uncertainty results." (Kowis v. Howard, supra, 3 Cal.4th at p. 898.) And respondents are wrong when they claim that the sole possible ground for summary denial of a nondiscretionary writ is on the merits. The writ can be denied because of procedural deficiencies in the petition. Thus, as with any other summary denial, "judicial economy would be hampered" (ibid.) by an exception to Kowis for nondiscretionary writs, because "[a]ppellate courts would continually be compelled to examine summary denials" (ibid.) to determine whether the denial was on the merits or because of a procedural deficiency. Respondents also seem to think this court's denial of review after summary denial of supersedeas establishes law of the case. (See APFR 2, 10.) They have overlooked the policy that a denial of review is not to be construed as an expression of opinion on the merits. (Trope v. Katz (1995) 11 Cal.4th 274, 287, fn. 1.)
C. Review should be granted on the prior restraint issues presented by respondents.
Finally, we agree with respondents that this court should grant review on their two prior restraint issues: whether a court may enjoin defamatory speech, and whether the court may extend such an injunction to defamation of non-parties. (See APFR 3, 23-29.) These issues are inextricably intertwined with the prior restraint issues we have presented - whether a court may order destruction of a publication found to be defamatory, and whether the Court of Appeal wrongly left some portions of the present injunction intact. (See PFR 29-32.) Review of one requires review of all.
CONCLUSION
Respondents are certainly on target when they characterize the Court of Appeal as "particularly incensed" at Delfino and Day (APFR 4) B which was obvious to all who attended oral argument. But being "particularly incensed" at offensive speech does not justify censoring it. Respondents concede the artistic merit in the works of cultural icons and renegades like James Joyce, Walt Whitman, Allen Ginsberg, and Lenny Bruce (see PFR 4; APFR 1), but to some people, even today, those works are just as offensive as the message-board postings of Delfino and Day, many of which bear striking resemblance to passages in those works. (See, e.g., Joyce, Ulysses (Gabler et al. edits., 1986) pp. 360-362, 367, 402, 423-425, 440, 604-605, 626 [racist imagery and descriptions of masturbation, copulation, genitalia, semen, urine, hermaphroditism, exhibitionism, and voyeurism]; Whitman, Leaves of Grass (Signet Classic 2000) pp. 23, 42, 45, 48, 88, 90, 93, 105 [homoerotic descriptions of genitalia and semen]; Ginsberg, Howl and Other Poems (1956) pp. 9-10, 13-14, 16-18 [vulgar descriptions of anal intercourse, oral sex, genitalia, semen, drug use, and insanity]; Lenny Bruce: Swear to Tell the Truth (Home Box Office 1998) quoted in Colling & Skover, The Trials of Lenny Bruce (2002) p. 442 [standup comedy routine about Eleanor Roosevelt's anatomy].)
If Delfino and Day are fair game for censorship because the Court of Appeal for the Sixth Appellate District thinks their Internet postings are "uncivilized" (see typed opn., p. 8), then so are the James Joyces, Walt Whitmans, Allen Ginsbergs, and Lenny Bruces of tomorrow. This court's intervention is needed to ensure that nothing of the sort occurs in California.
Dated: January 22, 2004
Respectfully submitted,
HORVITZ & LEVY LLP
JON B. EISENBERG
JEREMY B. ROSEN
By_signed______________________________
Jon B. Eisenberg
Attorneys for Defendants and Appellants MICHELANGELO DELFINO and MARY E. DAY"
geocities.com |
