UPEPA Tested In Context Of Anti-SLAPP Dispute Over Psychic Conversions With A Dead Person In Al-Albustani
Tracy Twyman committed suicide on July 9, 2019, preceded by some weeks of severe mental illness including adopting various Q’Anon beliefs. About a week later, Ms. Sloan Bella appeared on a crank radio show (the “Ground Zero Show”), with some Q’Anon followers, to report — among other things — that Bella had engaged in a psychic communication with the late Twyman in which Twyman’s ghost had claimed to have been murdered. While Bella apparently did not mentioned him by name on the radio show, the effect was that various conspiracy nutters on social media started targeting Mr. Al-Albustani as Twyman’s ostensible murderer.
Not enjoying this new notoriety, Albustani sued Bella, other conspiracy loons, and the entities that were apparently involved in producing the show, on a variety of grounds, including copyright infringement (or his own name and likeness), violation of Washington’s Personality Rights Act (“WPRA”), false light invasion of privacy, intentional infliction of emotion distress, and negligent infliction of emotional distress. This action was brought before the U.S. District Court for the Western District of Washington.
Soon after the Complaint was filed, and representing herself pro se, Bella sent a letter to the court basically denying her liability to Albustani and mentioning Washington’s Anti-SLAPP law, the Washington Uniform Public Expression Protection Act (“UPEPA”). The Court decided to treat the letter as a Special Motion filed under the Washington’s UPEPA and solicited briefing from Albustani, whose attorneys provided it. This led to the Order of the court in Al-Albustani v. Alger, 2022 WL 3213331 (W.D.Wa., Aug. 9, 2022), which I shall next relate.
The Court first noted that the Washington UPEPA had previously been reconciled by the U.S. Ninth Circuit Court of Appeals so that if the defendant made only a challenge to the sufficiency of a claim, then the court should apply Federal Rule of Civil Procedure 12(b)(6) to determine whether the claim was properly stated, but if the defendant challenged whether the plaintiff had sufficient facts to sustain his claim, then the summary judgment standard of FRCP 56 should instead apply. A difference between the two is that an FRCP 12(b)(6) motion to dismiss does not allow the plaintiff an opportunity for discovery, but an FRCP 56 motion for summary judgment does in some circumstances. Here, Bella had essentially challenged the former, i.e., whether Albustani had adequately plead his claims against her.
The first claim of Albustani to be considered was his copyright infringement claim that he decided to abandon anyway, and so therefore the court dismissed that claim with prejudice.
Albustani’s second claim was based on the WPRA which basically protects a person’s likeness and provides for in infringement claim when somebody else uses that likeness for advertisement or commercial purposes, whether for profit or not. This claim was dismissed for a number of reasons: The claim was based on conclusory statements, Bella was not alleged to have used Abustanti’s name on the show, and thus anything Bella said was not an advertisement or endorsement using Abustani’s name.
More interesting was Albustanti’s third claim, which was for false light invasion of privacy. This tort requires the plaintiff to prove that the defendant publicized a matter that placed the plaintiff into a false light, the false light would be highly offensive to a reasonable person, and the defendant either knew this or acted recklessly. Albustani alleged that these elements were met when Bella went on the radio show, recounted her alleged psychic conversation with the late Twyman that lead to Albustani being suspected of her murder, and Bella either knew or should have known that her conversation with the late Twyman was false and that bad consequences would flow from her recounting her false tale.
On this point, Bella attempted to claim that her statements were nothing more than her opinions which would be protected under the Washington UPEPA, but the court noted that her statements went far beyond that and led to Albustani being accused of murder, and thus Bella’s motion to dismiss this claim would be denied.
Albustani’s next cause of action was for intentional infliction of emotional distress, which requires that the defendant have engaged in extreme or outrageous conduct that resulted in emotional distress to the plaintiff. Here, Bella argued that her brief description of “Ms. Twyman’s un-alive circumstances” did not rise to the level of outrageous. The court, however, noted that Bella had made her statements on a nationally-syndicated radio program of broad reach, and so were potentially actionable. A similar analysis applied to Albustani’s last claim, which was for negligent infliction of emotional distress, and so Bella’s special motion to strike these claims would be denied.
This opinion illustrates the very close relationship between a UPEPA special motion and an ordinary FRCP 12(b)(6) motion to dismiss, as well as a motion for summary judgment. If one were to call a UPEPA motion either a “motion to dismiss on steroids” or an “early summary judgment motion”, they would not be too far off as the analysis of the claims to be made by the court is exactly the same.
What sets off a special motion from an ordinary motion to dismiss or summary judgment motion is not the court’s analysis track, but rather the procedural advantages of a special motion. These procedural advantages include that the motion must be resolved by the court very early in the proceeding, the litigation between the movant and respondent is stayed pending resolution of the motion, and the movant has an appeal as of right if the special motion is denied. The fundamental analysis of a particular cause of action is, however, exactly the same once the cause of action has been identified to fall within the scope of the UPEPA’s protections.
Another takeaway from this opinion is that special motions do not ipso facto succeed once the subject matter of the cause of action has been determined to be within the scope of the Act. To the contrary, if the party bringing the cause of action can show that they have a potentially meritorious case, the special motion should be denied. The only thing that the special motion does is to drag this testing of the case from the end of the case, when summary judgment motions are typically made after the close of discovery, to the front of the case so that unmeritorious cases may be dispensed with at the outset.
But this brings up another important point: Those litigants who bring causes of action that are within the scope of the UPEPA (or any Anti-SLAPP law) had better be prepared at the moment of filing to show the court that their cause of action is indeed meritorious. Stated otherwise, those litigants who want to bring an action within the defendant’s rights of free speech, to the press, or to assemble or petition, should have their pleading and evidentiary ducks in a row on Day 1 or else they will risk a UPEPA dismissal with prejudice.
This is a current that runs throughout the UPEPA, and we will doubtless have many more future opinions to explore it in more depth.