First UPEPA Order Issued In Project Veritas Case

Project Veritas is a not-for-profit group has been occasionally characterized, rightly or wrongly, for making extremely misleading right wing documentaries and other videos. One of their publications was a video report entitled “Ilhan Omar Connected Cash-for-Ballots Voter Fraud Scheme Corrupts Elections” (referred to hereafter as the “Video Report”). This video sought to expose a person allegedly engaged in ballot harvesting and other activity in violation of Minnesota’s election laws.

The Video Report was quickly debunked by a Blog Post on the website of The Election Integrity Partnership (“EIP”), which seeks to point out the truth about voter fraud, or the actual lack thereof, and to generally dispel what views as political propaganda. The EIP is a partnership between two employees of Stanford University and the Center for an Informed Public of the University of Washington. The EIP’s blog post questioned Project Veritas’ integrity and its sources, and warned that ” it should be expected that more misleading videos of this type will be pushed in a similar fashion in the “coming days.”

On the same day that Project Veritas published its Video Report, the New York Times published a story about former President Trump’s business and tax history. Project Veritas claimed that the Times article basically upstaged the Video Report, and that the Times and the EIP colluded to disparage the Video Report by way of a subsequent Times’ article which also called into question both the Video Report and Project Veritas generally.

Shortly thereafter, Project Veritas sued the New York Times and two of its writers for defamation, and its complaint was able to survive the Times’ Anti-SLAPP motion. This litigation is apparently still ongoing at the time of this writing.

About a year after it sued the New York Times, Project Veritas brought another complaint for defamation, this time against Stanford and the University of Washington in the U.S. District Court for the Western District of Washington. Stanford and UW filed a special motion to strike under Washington’s Uniform Public Express Protection Act (“UPEPA”), as well as a standard Rule 12(b)(6) motion to dismiss. All this resulted the opinion that is the subject of this article and which will now be discussed.

Project Veritas’ first argument was that the Washington UPEPA should not apply to proceedings in federal court, but the U.S. District Court easily swatted this away by noting that the U.S. Ninth Circuit Court of Appeals had already held Anti-SLAPP laws, such as the UPEPA, to be applicable in federal diversity actions within that federal circuit (although some other federal circuits do not permit such Anti-SLAPP motions).

As against the University of Washington, Project Veritas also argued that the Washington UPEPA would not apply, insofar as the UPEPA excludes from its protections “a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity.” For its part, UW attempted to argue that public policy should lean towards including governmental units in the UPEPA protections against harassing litigation, but the court didn’t buy this and instead held to the effect that “the statute says what the statute says”, and determined that UW was not afforded UPEPA’s protections (although, of course, UW could still assert its defenses in its motion to dismiss).

Moving on, the court first examined Project Veritas’ claim for defamation per se, which requires proof of all of four elements, being a false statement, publication of the statement, fault, and damages. Truth is, of course, an absolute defense to any defamation claim, and a statement need not be completely true so long as the gist of the statement is true. Likewise, an opinion (however misguided) is not actionable for defamation unless it makes factual statements that are demonstrably untrue. Here, the court found that EIP’s blog post was in the nature of opinion and did not make any factual statements which were blatantly false. The New York Times’ republication of EIP’s statements was similarly not actionable.

The bottom line was that Stanford’s UPEPA motion would be sustained, and the University of Washington’s motion to dismiss would also be granted. Project Veritas’ case was thus dismissed without leave to amend, and presumably now the matter will go up to the Ninth Circuit for review.

ANALYSIS

I recently wrote about the Washington UPEPA in my article UPEPA’s Commercial Speech Exception Examined For The First Time In Boshears (April 29, 2022). While Boshears was the first opinion to consider the UPEPA, this Project Veritas case is the first opinion to issue an order directly under the UPEPA, here in favor of Stanford University.

Otherwise, this case is unremarkable from the viewpoint of defamation law since the issues presented here have been resolved in numerous other cases over the years.

What is interesting is that the so-called “governmental unit” exception to UPEPA’s scope was not extended to the University of Washington. On this point, the court is correct that “the statute says what the statute says,” but as a member of the UPEPA drafting committee, I can tell you that this situation was not contemplated in drafting that exception. What that exception was meant to do was to keep a governmental entity from availing itself of the UPEPA’s special motion in cases where the governmental entity is a defendant in a lawsuit arising from some statement made by the governmental unit in the fulfilment of its governmental function (rightly or wrongly). The exception was not meant to apply to situations like the one here, where purely journalistic comments are made by somebody merely sponsored by a governmental unit are the subject of a defamation lawsuit. Still, the “statute says what the statute says,” and a fix of this issue (if one is even desirous) will need to be made by state legislatures or in a future revision of the UPEPA.

Nobody, including the drafting committee, ever claimed that the UPEPA was perfect or could anticipate the myriad issues that might arise after enactment. This is perhaps and example of that, but it is also an example of how the law evolves — situations like this arise, and statutes are later amended or not in response to the situation.

Another issue that comes up in this case is the applicability of UPEPA (and other Anti-SLAPP laws) in the federal courts. As mentioned, the Ninth Circuit allows UPEPA motions in diversity cases arising from a state with such laws, but other circuits have nixed them.

My position has been, and still is, that the circuits which disallow Anti-SLAPP motions have it wrong. Their position is that Anti-SLAPP laws are purely procedural, and federal procedure applies in federal cases, end of story. However, what Anti-SLAPP laws do at a very fundamental level is to provide defendants with a substantive right to be free from litigation at an early stage, not much different than if a state passed a statute that prevented defamation causes of action from being asserted in the first place in particular cases. Thus, while couched as a procedure, Anti-SLAPP laws are actually substantive in effect, and federal courts sitting in diversity are required to apply state substantive law. But, who knows, maybe this case will make it up to the U.S. Supreme Court to resolve the split amongst the circuit. Notably, federal Anti-SLAPP legislation has been introduced from time-to-time, but then gets lost in that dysfunctional institution known as Congress.

To be clear, I have no iron in this fire or, really, even much passing interest in how this litigation comes out. This case is only interesting to me because, again, it is the first order issued by any court under the UPEPA.

As the old saw goes, you have to start somewhere. For the UPEPA, this is that start.

CITE AS

Project Veritas v. Leland Stanford Junior Univ., 2022 WL 1555047 (W.D.Wa., May 17, 2022).