Jha v. Khan

Court: Court of Appeals of the State of Washington, Division I

Date Filed: Aug. 29, 2022

Update: On Nov. 14, 2022, the Court of Appeals of the State of Washington reversed the trial court’s ruling, concluding that it erred by denying Varisha Khan’s motion to dismiss the lawsuit.

Background: Siddharth Jha, a real estate developer, filed a false light invasion of privacy lawsuit against Varisha Khan, a politician, over a 2019 article Khan wrote criticizing her political opponent’s acceptance of campaign contributions from Jha and other developers with business before the city.

Khan and her husband, who is also named as a defendant, sought to have the lawsuit dismissed under Washington’s 2021 anti-SLAPP law, which is patterned on the Uniform Public Expression Protection Act, or UPEPA. Similar to anti-SLAPP laws passed by 31 other states and the District of Columbia, Washington’s law provides journalists and others a mechanism to quickly dismiss so-called “strategic lawsuits against public participation” arising out of speech on matters of public concern.

The trial court denied the defendants’ motion, and declined to address the speech protections they asserted — including First Amendment and common law protections for opinion and statements made under the fair report privilege. In addition, while the defendants’ motion should have triggered a complete stay on amended pleadings by Jha absent a showing of good cause, the trial court twice granted Jha’s motions related to amending his complaint (to add federal claims, presumably to side-step the state anti-SLAPP statute) without an adequate showing.

Khan appealed to the Court of Appeals of the State of Washington.

Our Position: The appeals court should reverse the trial court’s decision.

• The fair report privilege and opinion defenses are essential protections for free speech in false light cases.
• SLAPP plaintiffs must present prima facie evidence sufficient to overcome a defendant’s substantive legal defenses to survive a motion under Washington’s anti-SLAPP law.
• Allowing parties to easily amend pleadings once a UPEPA motion has been filed would undermine the Act’s purpose and incentivize SLAPP plaintiffs to circumvent the statute’s reach by rushing to amend their pleadings.

Quote: “Strong anti-SLAPP protections are essential to protecting the news media’s ability to inform the public. The lower court’s orders, if left undisturbed, would weaken UPEPA and its vital protections for public discourse.”