Johnson v. Ryan

• Decision Date: 19 March 2015
• Docket Number: No. 31837–1–III.,31837–1–III.
• Citation: 186 Wash.App. 562,346 P.3d 789
• Parties: Yvonne A.K. JOHNSON, Appellant, v. James P. RYAN, Respondent.
• Court: Washington Court of Appeals

186 Wash.App. 562

346 P.3d 789

Yvonne A.K. JOHNSON, Appellant

v.James P. RYAN, Respondent.

No. 31837–1–III.

Court of Appeals of Washington, Division 3.

March 19, 2015.

Robert Allan Dunn, Susan C. Nelson, Dunn Black & Roberts, P.S., Spokane, WA, for Appellant.

Stacia R. Hofmann, Law Office of Andrea Holburn Bernarding, Seattle, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 James Ryan engaged in vitriolic Internet blogging against Yvonne Johnson. Johnson sued Ryan for defamation and tortious interference with business expectancy. Ryan defended the suit, in part, by asserting the anti-SLAPP statute.¹ As permitted by that statute. Ryan filed a prediscovery motion to strike. He argued that Johnson's claims should be dismissed because his speech was protected speech in that his attacks against Johnson were matters of public concern. The trial court agreed and dismissed Johnson's claims. We hold that Johnson's blogging was primarily for personal concern, not public concern, and reverse the dismissal of Johnson's claims.

FACTS

¶ 2 As discussed later, we accept the facts and all reasonable inferences in the light most favorable to Yvonne Johnson, the party resisting the motion to strike.

¶ 3 The Spokane Civic Theatre (the Theatre) is a not-for-profit, performing arts theatre located in Spokane. The Theatre is a private foundation receiving support from private donors and operating with an endowment. On a donation web page, the Theatre notes:

Revenue from programming covers only 50 percent of our operating costs. We depend on the support and commitment of our community to make up the essential difference.

Clerk's Papers (CP) at 29.

¶ 4 In 2005, the Theatre hired plaintiff Yvonne Johnson as its executive artistic director. Johnson is a highly acclaimed theatre veteran who was selected from scores of applicants. At the time of her hiring, the Theatre was on the cusp of financial ruin. By 2010, despite the economic recession, Johnson had doubled revenue for the Theatre. This economic feat was accomplished through a significant increase in ticket sales, expansion of the Theatre's training camp for children, and numerous fundraising endeavors. Johnson's financial acumen and ingenuity allowed the Theatre to expand its full-time staff by several positions, including a full-time music director.

¶ 5 On August 19, 2010, Johnson hired defendant James Ryan as full-time music director for the Theatre. Ryan moved with his family from another state to Spokane. He understood the job had a three-year term.¶ 6 Two months after the hiring, Johnson terminated Ryan's employment at the direction of the Theatre's board. Prior to Ryan's termination, the Theatre received an anonymous e-mail disclosing the nonmonogamous nature of Ryan's marriage, as well as Ryan's use of graphically nude photographs and texts while engaging in online sex solicitations. The Theatre also discovered that Ryan noted that he was employed by the Theatre and used his Theatre employee photograph in advertising for sex. According to Johnson, the Theatre learned that Ryan initiated some of his sexual solicitations while backstage on Theatre premises.

¶ 7 Johnson wrote a lengthy termination letter to Ryan. In summary, the letter noted that he was being terminated not because of his swinger lifestyle but because his coupling of his lifestyle with his employment at the Theatre had the potential for offending parts of the local community and thus reducing the Theatre's donations. Mr. Ryan admits that he posted a discreet listing on Craigslist for sex, although he denies that it included any information that identified his name or his employer. Rather, he contends that all identifying information was forwarded to the Theatre by an anonymous e-mailer, who in turn had received it from someone Mr. Ryan had met through Craigslist.

¶ 8 Being without a job, Ryan had time to obsess over his firing from the Theatre. On October 18, 2010, Ryan began a public campaign to discredit Johnson for terminating his employment. According to Johnson, the campaign began when Ryan sent an e-mail to her and posted the message on Facebook, although the e-mail is not part of the record. On October 24, 2010, Ryan began posting negative statements about Yvonne Johnson on the Internet via a blog entitled “thetyrannyofyvonne.” Clerk's Papers (CP) at 99.

¶ 9 Ryan obtained the domain names of “spokanecivictheater.org” and “spokanecivictheatre.org.” CP at 99. The Theatre's domain address was “spokanecivictheatre.com.” The similarity in domain names caused confusion for those wishing to locate the Theatre's website. Anyone who mistakenly searched for the Theatre's website by utilizing one of his created addresses was immediately routed by Ryan's design to his sites. On April 29, 2011, Ryan began posting negative statements about Johnson on his two sites. In general, these blogs provide a lengthy chronology of Ryan's ongoing post-employment dispute with Johnson through various tribunals. This tedious chronology is set forth in some detail by the dissent. Within this tedious chronology is an isolated and vague reference that the Theatre board must be publicly held to account for failing to exercise its duties. This vague reference likely was to a wrongful discharge lawsuit that Ryan filed soon afterward against the Theatre.

¶ 10 Johnson alleges that Ryan sought to prevent her from gaining employment in the theater world. She cites a November 14, 2011 blog Ryan wrote:

As I was writing this, it occurred to me that Civic is locked in a self-imposed catch–22. The longer the board fails to seek a resolution [to my employment dispute], the longer Civic is likely to be stuck with Yvonne A.K. Johnson. People have been talking for a year now about her desire to find a bigger, better job and move on from here—a scenario that has been fantasized about with no small amount of glee. If it is true that Ms. Johnson has been job hunting, one has to imagine that prospective employers have probably taken the time to Google Civic and her name. They are not likely to skip past the second search result, which is this site. (They might even just enter http:// www.spokanecivictheatre.org, assuming that that would be the correct domain.) A few minutes spent reading this ... is likely to induce a sense that Ms. Johnson would bring more drama and divisiveness than any respectable institution would care to have. So any fantasies you may have that Civic will soon be free of Ms, Johnson of her own accord are probably a bit unrealistic.

CP at 108.

¶ 11 In a similar vein, Ryan wrote in red letters at the beginning of a blog on February 8, 2013:

If you have arrived at this page because you are considering Yvonne A.K. Johnson [for a job] please feel free to contact me. I would be happy to put you in contact with individuals [of] status within the community [who] would lend supporting testimony to what you will read [here I can be] reached at civicdoodyspokane@gmail.com.

CP at 104.

¶ 12 Johnson also alleges that Ryan's blog attacks sought to coerce a financial settlement with the Theatre. In the same February blog, Ryan discussed a summary judgment ruling against him in the wrongful discharge lawsuit he filed against the Theatre. According to Ryan, prior to the dismissal of his lawsuit he offered to settle his case for one year's salary and moving expenses but now that his lawsuit was dismissed, the Theatre would be required to pay “serious money” to “end this thing.”

CP at 10. He also blogged that public ridicule is the only remedy for actions that fall into this category and this was their best chance to end this thing with a reasonable settlement and a nondisclosure.

PROCEDURE

¶ 13 On April 5, 2013, Yvonne Johnson filed suit against James Ryan for intentional interference with business expectancy and defamation. Johnson sought damages and injunctive relief. In his amended answer, James Ryan sought dismissal of Johnson's complaint under RCW 4.24.525, the anti-SLAPP statute, together with an award of statutory damages and reasonable attorney fees.

¶ 14 On May 31, 2013, Ryan brought a motion to strike, pursuant to RCW 4.24.525. Ryan argued that his online postings simply provided a public forum for discussion and dissemination of commentary, complaints, and general information related to the Theatre. He asserted that his online cyber-conduct addressed matters of public concern, evidenced by Internet traffic the blog purportedly received.

Ms. Johnson countered that the postings were merely a private concern and not protected by the statute.

¶ 15 The trial court granted Ryan's motion after concluding that Ryan's online blogging activity addressed speech on a matter of public concern. The trial court awarded Ryan $10,000 in statutory damages and $8,358.40 in reasonable attorney fees and costs. Johnson appealed.

LAW AND ANALYSIS

¶ 16 In 1989, Washington adopted the nation's first anti-SLAPP law, still codified under RCW 4.24.500 to .520. The law, known as the Brenda Hill Bill, provides immunity from civil liability for claims based on good-faith communication with the government regarding any matter of public concern. Tom Wyrwich, A Cure for a “Public Concern”: Washington's New Anti–SLAPP Law, 86 Wash. L.Rev. 663, 669 (2011). The Brenda Hill Bill was not without defect, since it did not provide a method for early dismissal. Id. With courts unable to dismiss SLAPPs before discovery, defendants had no means of escaping the significant legal expenses SLAPPS purposefully inflicted. Id. at 669–70.

¶ 17 In March 2010, the Washington Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. Laws of 2010, ch. 118, § 4. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. Wyrwich, supra, at 663. The 2010 Washington Act contains a declaration of purpose:

(1) The legislature finds and declares that:

(a) It is concerned about lawsuits

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