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Oakland mayoral candidate loses appeal of unsuccessful defamation suit against weekly newspaper

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  1. Libel and Privacy
A three-judge California appeals court panel has denied an Oakland mayoral candidate’s appeal of a lower court’s decision to toss…

A three-judge California appeals court panel has denied an Oakland mayoral candidate’s appeal of a lower court’s decision to toss out her libel suit against a weekly newspaper concerning coverage of her campaign.

Marcie Hodge, a local politician who ran unsuccessfully for mayor of Oakland in 2010, sued the East Bay Express for defamation soon after a September 2010 column ran in the newspaper questioning the motivations behind her bid.

A California trial court granted the newspaper’s motion to dismiss the case early under the state’s anti-SLAPP law. Short for “strategic lawsuit against public participation,” the statute aims to prevent the chilling effects on speech caused by lawsuits intended to censor, intimidate or silence critics.

California’s anti-SLAPP law allows a defendant successfully invoking its protections to put on hold costly discovery, and a successful dismissal could entitle defendants to attorney fees.

Presiding Judge J. Anthony Kline of the California Court of Appeal in San Francisco concluded that Hodge could not establish she would likely be successful in proving the statements made by reporter Robert Gammon were false.

“Gammon never purported to definitively know the answers to the questions he posed regarding (Hodge’s) motives in running for mayor,” Kline wrote in an unpublished opinion released last week. “Any reasonable Express reader would necessarily understand both that the statements in question were part of Gammon’s subjective opinion about (Hodge’s) run for mayor and that the reader was ‘free to accept or reject’ Gammon’s opinion that appellant was running as a spoiler.”

Under the U.S. Supreme Court’s decision in Milkovich v. Lorain Journal Co., statements couched as opinions no longer receive blanket constitutional protection, but rather must be evaluated to determine whether they are based on or presume underlying facts. If there are no facts given to support the opinion, or these facts are false, the “opinion” statements will not be protected.

Kline evaluated several statements at issue in Hodge’s defamation suit and concluded that each statement was based on disclosed facts that Hodge could not prove were false.

For instance, Kline noted that statements in the article that Hodge “won’t take the time to prepare for a debate” were Gammon’s subjective opinion about her performance based on his own perceptions.

Kline also concluded that suggestions in Gammon’s article that a political ally funded a portion of Hodge’s campaign were protected opinion.

Hodge’s court statements explaining she spent money from her personal savings on her mayoral campaign “does not transform Gammon’s opinion into a false statement of fact,” Kline wrote. “Rather, he set forth the facts – including both (Hodge’s) explanation of where she obtained funds for her campaigns and the difficulty of confirming that explanation due to the lateness of (Hodge’s) past campaign disclosure statements – and, based on those facts, expressed suspicion about the likely source of (Hodge’s) campaign funds.”