Comments about judicial candidate not protected by anti-SLAPP law

Comments about judicial candidate not protected by anti-SLAPP law

• An appellate court reversed a trial judge’s decision to throw out a suit against a talk show host who said a judicial candidate “likes rapists and releases them from prison early.”

A radio talk show host will have to defend at trial a comment he made on the air about a candidate for judicial office, despite state anti-SLAPP legislation that allows for early dismissal of lawsuits that interfere with participation in public controversies, according to an early August ruling from an intermediate state appellate court in Los Angeles.

The court reversed a trial court’s decision to dismiss the claim against talk show host Herb Nero over a comment that judicial candidate Victor Reichman, “likes rapists and releases them from prison early.”

The state appellate court ruled in an unpublished opinion that the “demonstrated falsity of the statements, coupled with the host’s failure to deny malice or to show any basis for reasonable belief in the statements, made out a prima facie circumstantial case that the host acted with malice.”

Nero had asked the trial court to dismiss the lawsuit under the authority of California’s anti-SLAPP statute. SLAPP stands for “strategic lawsuit against public participation,” and anti-SLAPP legislation allows for early dismissal of claims that interfere with participation in public controversies. The trial court granted Nero’s request for dismissal, and while the appellate court recognized that the anti-SLAPP legislation was applicable, it found dismissal inappropriate.

According to the appellate court, Nero’s statement was “demonstrably and indisputably false, and highly damaging to a judicial candidate.” Furthermore, the court found the “blatant falsity” of the statement coupled with its highly damaging nature, along with Nero’s support for Reichman’s opponent, sufficient to raise a “clear and convincing inference of malice.”

Finally, the court concluded that this inference of malice was “strengthened by Nero’s complete failure, in his declaration, either to deny malice or to disclose any investigation or evidence to support any of his statements about Reichman.”

Nero plans to appeal the decision.

(Reichman v. Eric Chandler Communications of Antelope Valley, Inc.; Counsel: Rex Parris, Lancaster, and David Clark, Santa Ana)

© 1999 The Reporters Committee for Freedom of the Press

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