By Anne Lowe

FREE PRESS – The California Court of Appeal has upheld an anti-SLAPP motion granted to the San Francisco Chronicle, ending a libel suit brought by an Oakland City Council member.

The suit, filed by Council member Desley Brooks in 2008, challenged an opinion piece written by columnist Chip Johnson, but was dismissed by a trial court in April 2009 under California’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. The appellate court affirmed the decision Thursday.

The source of the suit was an article published June 24, 2008 which detailed stories previously covered by the Chronicle involving former Oakland City Administrator Deborah Edgerly.
Brooks was mentioned in one sentence, where Johnson reported that “nothing was done when allegations of illegal kickbacks were raised against District Six Councilwoman Desley Brooks…after police investigators linked bank deposits made by the mother of one of Brooks’ employees to several personal checks for $1,200 written to Brooks (exactly half the employee’s paycheck).”

Brooks contended the facts stated in the sentence were false and even produced a death certificate to prove the mother of the employee in question had died before Brooks took office.
The appeals court, however, upheld The Chronicle’s motion to strike the case, stating that Brooks’ burdens of providing “admissible evidence” supporting her claim and showing that her claim is “legally sufficient” were not met.

Because the Chronicle proved the complaint fell within the scope of the Anti-SLAPP statute, the burden of proof was shifted to the plaintiff, the court said in its unpublished decision.

We agree with the trial court's conclusion that Brooks has not met her burden of establishing a probability of success on the merits because the Chronicle's column was absolutely privileged under Civil Code section 47, subdivision(d)(1). This section makes privileged "a fair and true report in, or a communication to, a public journal, of [a] public official proceeding, . . . or . . . anything said in the course thereof."
If a court finds that an allegedly defamatory communication falls within the scope of Civil Code section 47, subdivision (d)(1), then the statement is absolutely privileged regardless of whether the statement is a verifiable fact or what the defendant's motive was for reporting it. . . The absolute nature of the privilege means that even if the "print media publish an accurate report of a statement they know to be false, the protective cloak of [the fair and true report privilege] remains intact." Likewise, "malice on the part of the media," even if such malice could be shown, will not "defeat the media privilege codified" by Civil Code section 47, subdivision (d)(1).

Despite Brooks’ claim on appeal that the “fair and true report” test should not apply because Johnson’s sources were not written record, the “fair and true report” test ultimately led to the court’s decision to affirm the judgment.
By testing what effect the allegedly defamatory statement has on “the mind of the average reader,” the court was able to determine that the ‘gist or sting’ of the statement was accurate whether the facts used were false or not. Citing several cases to bolster its opinion, the court found that even if the facts in the statement were false, The Chronicle was not responsible for justifying every word used in the allegedly defamatory statement.
Cases have found that the "gist or sting" criteria were satisfied in situations similar to the circumstances


As the trial court put it, "[a]n ordinary reader, learning that Councilwoman Brooks was being officially investigated for kickbacks in connection with the employment of a staff member, would have the same opinion of Councilwoman Brooks whether or not the challenged phrases were part of Mr. Johnson's column." We agree.