Campos v. Jensen

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: LAGESEN, P. J.
• Citation: Campos v. Jensen, 296 Or App 402, 439 P.3d 540 (Or. App. 2019)
• Decision Date: 06 March 2019
• Docket Number: A165563
• Parties: David CAMPOS, Plaintiff-Appellant, v. Dianna JENSEN, Defendant-Respondent.

296 Or.App. 402

439 P.3d 540

David CAMPOS, Plaintiff-Appellant,

v.Dianna JENSEN, Defendant-Respondent.

A165563

Court of Appeals of Oregon.

Argued and submitted August 28, 2018.

March 6, 2019

Jeffrey S. Frasier, Portland, argued the cause for appellant. Also on the briefs was Chenoweth Law Group, PC.

Judy D. Snyder, Portland, argued the cause for respondent. Also on the brief was Law Offices of Judy Snyder.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

This is a tort action for defamation and invasion of privacy. Defendant’s friend, Ferguson, accused plaintiff of sexual misconduct. The accusations resulted in criminal charges against plaintiff. He was acquitted of those charges. Before, during, and after plaintiff’s trial, defendant made online statements about the case that were sympathetic to her friend. Plaintiff alleges that those statements were defamatory and effected a tortious invasion of privacy. On defendant’s special motion to strike under Oregon’s anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, ORS 31.150, the trial court concluded that the statements at issue were nonactionable statements of opinion protected by the First Amendment to the United States Constitution under the framework established in Neumann v. Liles , 358 Or. 706, 369 P.3d 1117 (2016), and dismissed the case. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are not disputed. As noted, defendant’s friend, Ferguson, accused plaintiff of sexual misconduct. The accusations led to two criminal charges against plaintiff in Washington; a jury acquitted plaintiff of both charges. Before and shortly after plaintiff’s trial, defendant posted two online statements about the charges on Ferguson’s Facebook page. Additionally, during the trial, defendant posted a comment on the website for the newspaper The Columbian. Those statements form the basis of plaintiff’s claims against defendant.

Defendant made the first statement in response to a Facebook post by Ferguson. Ferguson’s post stated:

"Tomorrow is a big day for me, [it's] a big day for a few folks, actually. I am eager to witness the judicial system working at full capacity! At the end of this trial, there will be 12 people that will decide the outcome of a very disturbing experience that I had almost a year and a half ago. IS he guilty or isn't he? NO matter what, he IS GUILTY. I am confident that my strength and conviction will play a big part in the outcome and I trust how that will be presented to all parties. A woman can be friendly, she can smile a lot, she can be funny, open and direct. Judge how you wish, but please know that these qualities, in NO way give anyone permission to force themselves onto her!"

(Uppercase in original.) Defendant, among others, commented on that Facebook post. Defendant’s comment stated:

"[W]e are 100% standing with you and by you. [W]e know who you are. [S]o we know this man is 100% guilty, and needs to pay the price for his lack of character and his criminal behavior.... [I'm] so sorry you had to experience something like this in your life, and [I] am praying for you and this case...... You are one of the best people I know .... [heart emoticon you]."

Defendant made the second statement during plaintiff’s criminal trial, with a post on the website for The Columbian . The paper had published an article about the case that described Ferguson’s allegations and plaintiff’s position as "a case of ‘he-said, she-said’ and that it was a consensual encounter," and that Ferguson’s version of events was not true. Defendant’s comment stated:

"I know this person on a person[al] level, and she is telling the truth.....she is a fine [upstanding] person, a great mother, and a person of respectability and honesty.....she would never ever make this up....it happened, you can believe it......I hope this creep gets what he deserves.....what he did was traumatizing and just plain wrong.....He is a liar.....and a sexual predator....BEWARE.....!!!"

(Uppercase in original.)

Defendant made the third statement on Ferguson’s Facebook page after the jury acquitted plaintiff. Responding to the acquittal, Ferguson posted "OJ got off too...but we all know he did it." Defendant commented on the post:

"Yes, and we all know this guy did it too. Justice at its worst...so sorry they couldn't get it right....[it's] a tragedy, for the community...hugs girl....we all stand with you, for you, and against him."

Soon thereafter, plaintiff filed this action. Defendant filed a special motion to strike under ORS 31.150. Defendant asserted that her comments "are written statements made in a public forum or public place in connection with an issue of public interest, ORS 31.150(2)(d)," and "[plaintiff] cannot meet his burden of establishing that there is a probability that he will prevail on the claims, ORS 31.150(3)," entitling her to dismissal of the case. In particular, defendant contended that under Neumann , 358 Or. 706, 369 P.3d 1117, her statements qualified as opinions that were protected by the First Amendment and were, therefore, not actionable.

Plaintiff opposed the motion. He did not dispute that defendant’s statements were the type that permitted her to invoke the anti-SLAPP procedures, but, instead, contested defendant’s assertion that her statements qualified as nonactionable opinions under Neumann , arguing that each statement was "presented as an unqualified statement of fact and is thus not subject to First Amendment protection."

Following a hearing, the trial court granted the motion. Applying the Neumann framework, the trial court ruled:

"Given the totality of relevant circumstances, the nature of the statements, their form and, importantly, their context as commentary to other articles and comments not written by [defendant], I find that a reasonable factfinder could not conclude that the statements made by [defendant] implied an assertion of objective facts. Read as a whole, the statements clearly reflect [defendant’s] personal and subjective impressions and opinions based on her support for Ms. Ferguson."

Plaintiff appealed.

On appeal, plaintiff raises 11 assignments of error that present, essentially, one question: Did the trial court err when it concluded that, under Neumann , none of the identified statements are actionable? Plaintiff contends that at least some of the sentences in defendant’s three online statements imply assertions of objective facts, so as to render the First Amendment protection for opinions inapplicable. Defendant responds that the trial court correctly understood Neumann to require it to view each statement as a whole within its surrounding context and that, so viewed, the court rightly determined that none of defendant’s words were actionable.

II. STANDARD OF REVIEW

We review for legal error a trial court’s ruling on a special motion to strike under ORS 31.150. Neumann v. Liles , 261 Or. App. 567, 572-73, 323 P.3d 521 (2014), rev'd on other grounds , 358 Or. 706, 369 P.3d 1117 (2016).

III. ANALYSIS

A. The Neumann Framework

As framed by the parties' arguments both below and on appeal, the sole issue before us is whether any of defendant’s online statements—or any parts of those statements—are actionable under the framework established in Neumann. Under that framework, where a statement addresses a matter of public concern, the "dispositive question is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact." Neumann , 358 Or. at 718-19, 369 P.3d 1117. To answer that question, we must examine the statements at issue under a three-part test:

"(1) [W]hether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression; and (3) whether the statement in question is susceptible of being proved true or false. Under that framework, we do not consider the defendant’s words in isolation. Rather, we must consider ‘the work as a whole, the specific context in which the statements were made, and the statements themselves to determine whether a reasonable factfinder could conclude that the statements imply a false assertion of objective fact and therefore fall outside the protection of the First Amendment.’ "

Id. at 719, 369 P.3d 1117 (internal citation omitted).

Neumann illustrates the analysis required under that framework. At issue in Neumann was whether the defendant’s online review of a wedding venue, posted on Google Reviews, was entitled to First Amendment protection. The review was as follows:

" ‘Disaster!!!!! Find a different wedding venue.

" ‘There are many other great places to get married, this is not that place! The worst wedding experience of my life!

The location is beautiful the problem is the owners.

Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn't raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The "bridal suite" was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic ] to keep your $500 deposit, and will try to make you pay even more.’ "

Id . at 719, 369 P.3d 1117.

Examining the review under the three-part test, the Supreme Court concluded that it was protected under the First Amendment. Assessing the general tenor of the review, the court acknowledged that several individual statements contained within it could, "[s]tanding alone, create the impression that [the speaker] was" making objective assertions of fact about...