Internet Law

Blogging prosecutor wins dismissal of federal civil-rights claim in 9th Circuit appeal

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A political activist who sued a blogging prosecutor failed to establish he acted under color of state law and cannot bring a civil rights claim under Section 1983, a federal appeals court has ruled.

The San Francisco-based 9th U.S. Circuit Court of appeals tossed the Section 1983 claim by Nadia Naffe on Monday, report Courthouse News Service and the National Law Journal (sub. req.). How Appealing links to the decision (PDF) and to blog posts on the ruling by the prosecutor and one of his pro bono lawyers.

Naffe had sued Los Angeles County Deputy District Attorney John Patrick Frey and the county for alleged derogatory comments he made about her on his blog, Patterico’s Pontifications, and on Twitter.

Naffe is a conservative political activist who accused her onetime friend, James O’Keefe, of drugging her and attempting to sexually assault her in a New Jersey barn. Frey rose to O’Keefe’s defense, allegedly calling Naffe a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd, according to the 9th Circuit opinion. He also allegedly insinuated that Naffe broke the law, and he posted transcripts in an unrelated lawsuit involving Naffe that included her Social Security number and mother’s maiden name, the opinion says.

Naffe sued for the alleged 1983 violation and also raised state law claims that included invasion of privacy and defamation. She said her claims were worth more than $75,000, entitling the federal court to hear the case based on diversity jurisdiction.

The 9th Circuit said the Section 1983 claim fails because Frey’s statements were unrelated to his work as a prosecutor, and both his blog and Twitter account included disclaimers that he was speaking only for himself and not for his employer.

“Although Frey drew on his experiences as a Deputy District Attorney to inform his blog posts and tweets, that alone does not transform his private speech into public action,” the appeals court said. “Indeed, if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the ‘marketplace of ideas.’ ”

The court ruled for Naffe on the issue of diversity jurisdiction, however, finding that the trial judge had used the wrong standard when he found the amount in controversy was below $75,000.

Frey’s blog post notes that the appeals court stated Naffe’s allegations as if they were true. “It doesn’t mean her allegations actually are all true,” Frey writes. “They aren’t.”

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