A Newport Beach activist lost his defamation case against the city because the statement in question — that he owed more than $600 in public records copying fees — was a protected form of free speech.
Orange County Superior Court Judge Thomas Delaney ruled in favor of the city of Newport Beach, Councilwoman Diane Dixon and Assistant City Clerk Jennifer Nelson in the case, which activist Mike Glenn filed in small claims.
Dixon made the assertion about him during a City Council meeting earlier this year.
Delaney said Dixon’s statement was protected because it was made in the proper discharge of her official duty, and in an official legislative proceeding while discussing taxpayer dollars being spent on the city-run Balboa Peninsula Trolley, a topic that Glenn has frequently criticized during public comment sessions at City Council meetings and on his website and Facebook page.
However, “[e]ven assuming those statements were not privileged, [Glenn] failed to prove his case by a preponderance of the evidence,” Delaney wrote in a decision posted Wednesday.
Glenn, who has been critical of the shuttle and its costs, had just spoken about the service at the April 11 meeting when Dixon told him he owed the city $619.93 for records related to the trolley that he had requested the previous two years and hadn’t picked up. Glenn replied that he never asked to pick up copies of the records.
Glenn accused Nelson of committing libel when she sent Glenn an email, copied to two other city employees, telling him that he had not paid for the records.
“The court’s decision (this week) affirms the First Amendment rights of public officials,” Dixon said in a statement. “I am pleased with the outcome and personally grateful for the professionalism and diligence of our city attorney and city clerk. This is a victory for the right of free speech for everyone. It is my hope that now we can all get back to what is my real passion as a city council member: maintaining and improving the quality of life for the residents of Newport Beach.”
Glenn did prove that Dixon’s statement was untrue, as he never specifically requested printed copies of the records, Delaney wrote.
“That said, [Glenn] failed to show by a preponderance of the evidence that he has suffered any damages as a result of the false statement,” Delaney wrote. “He argued that his reputation as a businessman has suffered in the community, but showed no proof of how his reputation has suffered, nor did he prove that he has suffered any damage as a result of the statement.”
No costs were awarded, and the city does not owe Glenn any money.
Delaney had earlier denied the city’s motion to dismiss the lawsuit on the basis that it was a SLAPP suit, or a strategic lawsuit against public participation, which is one intended to censor, intimidate and silence critics by burdening them with legal costs until they abandon their criticism or opposition. California has a law against such suits on the grounds that they may impede freedom of speech.
Delaney rejected the motion Tuesday stating that the lawsuit is a small-claims case, and anti-SLAPP motions are not proper small-claims actions.
He then allowed a trial on the merits of the case to immediately proceed. Dixon and Nelson did not attend. City Clerk Leilani Brown attended as their representative, which Delaney said was improper.
Nevertheless, Delaney said, Glenn still had to prove his case.
Glenn played a clip of his exchange with Dixon at the trial, plus a voicemail Dixon left for Brown asking how much Glenn owes the city for records. He said that showed intent to commit slander.
“This case is about truthfulness,” he told the judge. “If that statement is true that would not be defamation. That statement is not true.”
After hearing Delaney’s ruling, Glenn said he’d accomplished his chief objective — to prove in court that what Dixon said was untrue — but was troubled by the judge’s conclusion that Dixon’s rebuke was protected under state law.
“The fact that the judge said that State Code 47 allows people to literally lie from the dais without any recourse for citizens who are being slandered by elected officials tells me that we have a very serious problem in the state of California, and while I am happy to be vindicated by a judge from Dixon’s accusations, I am saddened that Dixon has all the legal ability to espouse as many un-truths as she wants,” he said. “After all, her entire defense in this case was not that she was telling the truth, it was that she was immune from being held accountable for her very own statements. That’s concerning.”
2:50 p.m., Dec. 21: This article was updated with comments from Councilwoman Diane Dixon and activist Mike Glenn.
This article originally published at 6 p.m. Dec. 20.