Appeals court rules against H.B. blogger in free-speech claim against Ocean View School District trustee

A state appeals court has ruled against a Huntington Beach blogger who challenged an Orange County Superior Court judge’s decision to strike down his claim that an Ocean View School District trustee tried to stifle his freedom of speech by pursuing a restraining order against him.

Trustee Gina Clayton-Tarvin argued that she felt threatened with violence by Charles “Chuck” Johnson, publisher of HB Sledgehammer.

In an opinion released Monday, a three-judge panel of California’s 4th District Court of Appeal in Santa Ana unanimously upheld the lower-court ruling.

“What I said all along has been reaffirmed. Threats of violence are never protected speech,” Clayton-Tarvin said Tuesday. She added that she hopes the ruling will prompt people to “think twice before they threaten to kill somebody or harm their children just because they don’t agree with their political ideology.”

In an email Tuesday, Johnson expressed disappointment with the decision and suggested that he and his lawyer may consider appealing the case to the California Supreme Court, as well as other legal avenues against Clayton-Tarvin.

The court battle between the two outspoken Huntington Beach figures began in March 2018, when Clayton-Tarvin was granted a temporary restraining order against Johnson. She claimed he had threatened violence against her and her family at school board meetings and in social media posts, saying things such as “Crooked Gina — Be quiet or be killed” and “Stop pissing me off. This is your last warning,” according to court documents.

Johnson, however, claimed Clayton-Tarvin was trying to silence him with the restraining order.

Johnson flied an anti-SLAPP, or anti-strategic lawsuit against public participation, motion, which is meant to protect critics of public officials from being targeted with meritless legal action.

In May 2018, then-Superior Court Judge Timothy Stafford denied Clayton-Tarvin’s request for a permanent restraining order, saying she knew the consequences of elected office.

Months later, Superior Court Judge Sheila Recio considered Johnson’s anti-SLAPP motion and determined it was moot.

In an appeal brief filed in April last year, Johnson argued that Recio “erred” because the motion had merit and he should be awarded attorney fees.

“Although [Johnson] argues it is not moot because of the issue of attorney fees, a motion for attorney fees does not appear to be dependent upon continuing to litigate the [anti-]SLAPP motion,” Recio wrote.

She also concluded the motion was untimely, having been filed late the night before the hearing on the permanent restraining order. The appellate court agreed.

“Pursuing the motion on the eve of the hearing was merely a low-risk way for Johnson to artificially increase the amount of attorney fees,” according to the 4th District opinion, written by Presiding Justice Kathleen O’Leary.

During a Dec. 16 hearing before the appellate panel, Johnson’s lawyer Chad Morgan argued that the statements Clayton-Tarvin perceived as threats weren’t meant to be taken literally and that a restraining order could inhibit Johnson’s ability to attend and participate in public meetings.

During the oral arguments, however, one member of the panel, Associate Justice Richard Aronson, questioned how the lower court reached its decision to deny the permanent restraining order.

After reading statements attributed to Johnson, “I’m kind of curious why he wasn’t arrested,” Aronson said.

On Tuesday, Clayton-Tarvin said the court’s finding validated her position that “I wasn’t ‘SLAPP’-ing him; what I was trying to [do was] prevent myself from being harmed.”

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