N.C. judge's libel case against citizen activist can move forward, appellate court says

A North Carolina appellate court reversed part of a lower court's decision on Tuesday that could reignite a county judge's defamation lawsuit against a citizen activist for statements he made on Facebook criticizing sitting judges' support of a state senatorial candidate. The court held the activist was not constitutionality protected for making false statements, even if he claimed they were his personal opinion.

The three-judge panel found a trial court judge partially erred in dismissing Judge Ola M. Lewis' defamation case against the political activist and media strategist, Edward Lee Rapp, who accused local Republicans — in a series of Facebook posts — of practicing "dirty politics" and violating state judicial conduct, according to court documents. Lewis was not named in the posts that were later published on Carolina News Network.

“This was about the Republicans and they didn’t like it and it is being used as a hammer to shut me up," Rapp said in an interview. "The blogs themselves had nothing to do with this judge … this is a political figure that doesn't like what was said, this is a political group shutting up a private citizen."

In April 2010, Lewis, who is the senior resident judge in Brunswick County Superior Court, filed a complaint alleging two of Rapp's Facebook posts were libelous and that the false accusations made damaged her professional reputation. The case was dismissed in July and quickly appealed.

During the 2010 election cycle, Lewis openly supported a candidate running for a state senate seat.

On April 9, 2010, Rapp posted an entry on his Facebook page titled "Dirty Politics by the good ol boys" in which he criticized the candidate and stated, "when sitting judges campaign for a candidate … we are clearly into dirty politics." In the post, Rapp cited a violation of state rules that lists proper judicial conduct. The post did not mention Lewis, but later that day the activist was contacted by Lewis' attorney, who informed Rapp that the judge was up for reelection and was not in violation of the code of conduct.

Under North Carolina Code of Judicial Conduct — Canon7B(2) — judicial candidates are permitted to "endorse any other candidate seeking election to any office." Rapp was admittedly unaware of the rule allowing candidate endorsements and openly admitted that he was wrong.

"It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong," Rapp wrote in an April 12 post. "Office holders cannot appear to be private citizens … the power and authority of their office precludes this."

In the second post, Rapp apologized for his comment and stated that he read through the code of conduct from "top to bottom." He also attached portions of the judicial rules for readers to make up their own minds, but excluded the principle provision permitting candidate support.

The appellate court ruled the exclusion of this rule was a deliberate attempt to mislead readers and validate the accusations and thus could support a finding that Rapp published the post with actual malice, a high standard of fault that public officials must prove to successfully sue for defamation. The court also found that Rapp's April 12 post was not constitutionally protected opinion, as the publication "contained provable false connotations" and was not his "subjective opinion."

The court cited the 1990 Supreme Court case Milkovich v. Lorain Journal Co. that stated, "even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact."

The court remanded the case to Brunswick County Superior Court for further review, where a jury could decide on the actual malice issue and determine damages.

Related Reporters Committee resources:

· NM&L: Opinion defense remains a strong tool in defeating defamation claims