SAN FRANCISCO (October 6, 2008) – Morrison & Foerster LLP secured a major victory for The Sing Tao Daily, a Chinese-language newspaper, when the California First District Court of Appeal ruled unanimously to reverse in its entirety the San Francisco Superior Court’s denial of The Sing Tao Daily’s Anti-SLAPP (strategic lawsuit against public participation) motion. Thisdecision will help news organizations and news reporters resist litigious plaintiffs seeking to suppress public discussion of important issues.
The case arises from the plaintiff’s claim of an assault by a Sing Tao Daily news reporter who sought to interview and photograph plaintiff after he testified in a high-profile corruption case. Sing Tao argued that even if plaintiff's allegations of apprehension of an unwanted touching were true, the reporter's actions arose out of protected First Amendment activity and, under the anti-SLAPP statute, the court was required to test plaintiff's evidence to determine whether he showed a probability of prevailing on the merits of his assault claim. The appellate court agreed, reversed the trial court's cursory denial of Sing Tao’s motion, and engaged in a full SLAPP analysis under the statute.
In determining that Sing Tao should have prevailed on its motion, the appellate court, in a unanimous decision, ruled that “[t]here can be no question that reporting on a witness who testifies at a criminal trial involving a high-level public official charged with corruption is protected activity” under California’s anti-SLAPP statute. It went on to rule that because the plaintiff’s declaration opposing Sing Tao’s motion “consists of evidentiary conclusions” only, and did not include “specific factual allegations,” he did not carry his burden to show that Sing Tao’s reporter intended to cause a harmful or offensive contact, as required by one formulation of the assault cause of action under California law. The court concluded that instead, the reporter’s “intent appears to have been to obtain an unobstructed photograph of [the plaintiff’s] face.”
Morrison & Foerster partner Cedric Chao from the San Francisco office was lead counsel on the appeal and was assisted by partner Maria Chedid and associate Elisabeth Traugott.