California’s Fourth District, Division Three, has found the spouse of someone running for office is not automatically considered a “limited purpose public figure” for defamation law, meaning the plaintiff does not have to prove “malice” to prevail. (Bui v. Ky (May 8, 2024) G062338.) Writing for the majority, Justice Delaney explained the statements at issue:
The full scope of actions allegedly engaged in by defendants were specified in the complaint as follows: “On or about February 13, 2022, Defendant [Nam] interviewed [Ngo] on his YouTube channel. During that interview Defendants said and implied that they knew the family of [plaintiff], that she [(plaintiff)] was the daughter of a Commander of the Communist Party regime, [and] that her husband’s family and relatives were all communists. Defendants identified [plaintiff’s] father as ‘Vu Thanh’, a high ranking communist leader, a Commander, and published several photos of an older man in a communist uniform, confirmed by Defendant NGO KY as [plaintiff’s] father. Defendants further claimed that during the 2022 Tet parade, that [plaintiff] and several friends all wore red with yellow hats, just like the communist regime’s flag, and that they danced and played communist music all along Bolsa Ave.” According to the complaint, these statements were false. It elaborated: “[Plaintiff’s] father was a civil engineer who retired in 2000. He never participated in the military. The man in uniform photo does not show [plaintiff’s] father. [Plaintiff] never participated or was involved with the Communist Party. [Plaintiff] wore a red dress, symbolic of the Lunar new year, in the Tet parade. The music played was Vietnamese pop music for the young people to dance to. It was not communist music.” (Id., p. 3.)
Plaintiff brought a Special Motion to Strike based upon Code of Civil Procedure section 425.16, which permits a defendant to challenge a complaint — by providing evidence such as written declarations — if it involves certain “protected activity” under the First Amendment and the defense shows the plaintiff can not show they will prevail. The public policy underlying this motion is to provide a summary proceed to dispose of Strategic Lawsuits Against Public Participation or "SLAPP" suits:
“The Legislature enacted section 425.16 in response to ‘a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.) The special motion to strike provided for in the statute is “‘intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.’” (Ibid.) By legislative direction, the statute is to “be construed broadly.” (§ 425.16, subd. (a).) “Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) The statute sets forth the four categories of protected activity. (§ 425.16, subd. (e).) “Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.”’” (Bonni, supra, 11 Cal.5th at p. 1009.) This step of the anti-SLAPP analysis “has been described as a summaryj udgment-like procedure. [Citation.] The court determines whether ‘“the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.”’ [Citation.] The plaintiff ‘“may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.”’ [Citation.] The defendant may submit evidence in support of its motion. [Citation.] (Id., pp. 9-10.)
Judge Lee of the Orange County Superior Court granted the motion to strike and the plaintiff appealed. The appellate court upheld the grant as to the claim for emotional distress, as the motion and opposition showed the anti-SLAPP statute applied and that plainiff's claim lacked merit.
However, the grant of the Special Motion to Strike was reversed as to the defamation claim. The Fourth District agreed with defendant that the anti-SLAPP law applied because the election involved the “public interest,” but found the Special Motion to Strike should have been denied as plaintiff had demonstrated her defamation claim had merit and she indeed might prevail.
This holding was based in large part upon a rejection of defendant’s claim that plaintiff was a public figure for the limited purpose of the candidacy of her husband and, therefore, under New York Times v. Sullivan, had to show “actual malice” on the part of the defendant to prevail.
The Bui opinion therefore teaches that whether a spouse is a “public figure” depends on the facts and not all spouses of candidates meet this test:
Where we diverge from defendants’ proffered analysis is the next step, which concerns plaintiff’s involvement in the debate. From defendants’ perspective, “[a] candidate does not run in isolation; in making [the decision to run for office] he or she brings the candidate’s family into the public eye.” To the extent this is an urge for us to find any political candidate’s family members to be limited purpose public figures simply by reason of the candidate’s choice to run for public office, we decline to so hold. Defendants do not point us to any authority for such a broad sweeping rule. Moreover, doing so would effectively turn family members of a political candidate, including children, into public figures through no purposeful action of their own. The Supreme Court has cautioned that the finding of such involuntary public figure status “must be exceedingly rare.” (Gertz, supra, 418 U.S. at p. 345.) We find no justification for the families of political candidates, generally, to be one of those “exceedingly rare” instances. (Id., p. 13; emphasis added and footnote and citations omitted.)
Analysis
The unstated context of this opinion is the fact that many in the Vietnamese-American community remain opposed to erasing the horrors of the communist regime in Vietnam that has ruled the country since the invasion of South Vietnam by North Vietnam following the withdrawal of United States forces. The allegation that someone has cooperated with this murderous regime is considered highly inflammatory and therefore highly defamatory to those who risked their lives to escape Vietnam.
The Fourth District made the right call here: a rule that a family member of a political candidate is a political figure simply because they are related to the candidate would greatly expand the concept of who is and is not a “public figure” and, therefore, must meet a much higher bar to prove defamation.
This, of course, comports with public policy, as such 1) encourages candidacy for political office, and 2) discourages the making of false statements as to the family of a candidate.
Finally, this case again shows the importance of knowing when and when not to file a Special Motion to Strike as opposed to simply filing an ordinary demurrer challenging the complaint on its face. Unlike a demurrer, a Special Motion to Strikeis is decided upon evidence, and not simply the language in the complaint, and in many circumstances, this is a great advantage to the moving defendant. However, such a motion is also more "high stakes" as, unlike a demurrer, under section 426.15 attorney fees may be awarded to the prevailing party upon a Special Motion to Strike.
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