A Huntington Beach blogger is asking a state appeals court to set aside a lower-court ruling and find that Ocean View School District trustee Gina Clayton-Tarvin sought to silence his criticism when she pursued a restraining order against him last year.
During a hearing this week before a panel of judges in California’s 4th District Court of Appeal, Chad Morgan, lawyer for HB Sledgehammer publisher Charles “Chuck” Johnson, argued that the motion was wrongly struck down and should be granted, regardless of the lower court’s ruling on the restraining order.
The appeal brief, filed April 26, argues that Orange County Superior Court Judge Sheila Recio “erred” when she denied the anti-strategic lawsuit against public participation, or anti-SLAPP, motion that Johnson filed against Clayton-Tarvin.
In a tentative ruling in August 2018, Recio called the motion “moot” since another Superior Court judge had already rejected Clayton-Tarvin’s petition for a permanent restraining order against Johnson.
Morgan wrote in a court brief that the motion was “properly and timely filed” before the restraining order hearing and should be considered because Johnson potentially could still recoup attorney fees.
Requests for comment made to Johnson’s lawyer this week were not returned.
The legal tussle between the two outspoken Huntington Beach figures began in March 2018, when Clayton-Tarvin was granted a temporary restraining order against Johnson, who she claimed had threatened violence against her and her family at school board meetings and in social media posts.
Her request for a permanent restraining order, however, was unsuccessful. Then-Orange County Superior Court Judge Timothy Stafford ruled against the petition in May 2018, saying Clayton-Tarvin knew the consequences of elected office.
“I feel that the lower court was accurate in its ruling and that threats of violence are not protected speech, ever,” Clayton-Tarvin, now the Ocean View board president, said Monday.
Johnson, however, claims Clayton-Tarvin tried to stifle his freedom of speech with the restraining order. Anti-SLAPP motions like the one he pursued are meant to protect people who criticize public officials from meritless legal action.
Morgan said a civil harassment restraining order would have prevented Johnson from attending school board meetings.
“That right there would have been enough to deny the restraining order as a whole,” Morgan said Monday.
Clayton-Tarvin’s attorney, Jeffrey Shields, disputed that argument, saying he and Clayton-Tarvin had asked that Johnson still be allowed to attend school board and City Council meetings, even if the restraining order were granted.
“We were not trying to get him barred from attendance. ... There was no potential topic we were trying to block,” Shields said. “We were simply trying to stop a public official [from being] intimated with violence.”
During Monday’s hearing, Associate Justice Richard Aronson said he was “at a loss to understand how the lower court denied the harassment petition.”
“‘Be quiet or be killed,’” Aronson said, reading aloud from court documents. “I’m kind of curious why [Johnson] wasn’t arrested.”
Morgan said the statement was not a threat but rather part of a larger political dialogue.
“This entire case is dealing in the metaphorical realm,” he said.
“It seems like a normal person would interpret this as a threat,” Aronson responded.
Morgan accused Clayton-Tarvin of reporting political opponents to Facebook for “completely innocuous conduct” online to get them “put in Facebook jail.” He further characterized her as combative in the face of criticism and suggested that Johnson’s statements employed hyperbole and metaphor.
Morgan also argued that Johnson’s speech is protected because it was part of political debate.
“Do you think threatening to kill someone is political debate?” Aronson said. “Is that what we’ve come to in this country?”
Politics has “always been contention,” Morgan said. He called the matter at hand a “political flame war, when ‘killing’ someone means beating someone at the ballot box.”
In his appeal brief, Morgan wrote that Johnson “has used some caustic metaphors in discussions about [Clayton-Tarvin]. He’s compared her to Charles Manson, wants to put her head on a stick and planned to expose her lies with a cluster bomb of information on the internet. None of these statements were intended or reasonably expected to be interpreted literally. They are common figures of speech, and [Johnson] was merely exaggerating his positions.”
Shields, though, said “there is nothing about those threats of violence that do anything but instill fear.”
“There is nothing [in the statements] ... that says anything about a public issue” or “suggest[s] they were metaphorical,” he said.
The court will issue a written opinion on the matter within 90 days.