County Prosecutor Who Blogs About Political Matters Is Not Acting Under Color of State Law

John Patrick Frey, a prosecutor in Los Angeles County authored a blog called Patterico's Pontifications, where he posted about criminal law and politics. His blog included a disclaimer that his views were his own and were not made in any official manner. After Frey posted a number of stories about Nadia Naffe (a political activist) calling her a liar, illiterate, and dishonest, among other things, Naffe filed a lawsuit against Frey and the County, alleging that his blog posts violated her civil rights.

The district court dismissed the lawsuit, finding that Frey did not act “under color of state law.” Naffe appealed to the Ninth Circuit Court of Appeals, which agreed with the district court that Frey was not acting in any official capacity when he blogged about Naffe. First, the Court noted that Frey’s job as a prosecutor did not include commenting on politics, so he was not exercising his official duties when he blogged about Naffe. Second, his blog included a disclaimer that he was speaking personally, and not as a district attorney.  As a result, Naffe’s civil rights claims could not proceed against Frey, since he was not acting in his official capacity when he blogged about Naffe.  Naffe v.Frey, No.  13-55666 (9th Cir. June 15,2015). 

Attorney Not Entitled To Identity of Anonymous Poster on Avvo

In a recent appellate court decision in Washington state, a court denied a lawyer's request that Avvo (an online attorney rating site) disclose the identity of an anonymous poster who wrote a negative review of the lawyer. Thompson v. Jane Doe (Ct. App. Wash. 2015)

The review stated as follows:

I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.

The attorney claimed that the post was designed to impugn her personal and professional reputation, and that she needed the poster's identity in order to proceed with a defamation action. Avvo.com refused to release the identity of the poster, so she filed a lawsuit to compel the release. 

The court reviewed a variety of cases where courts had considered similar requests to divulge the identity of anonymous posters. The court noted that there courts had applied differing standards in these cases. For example, in Virginia, a defamation plaintiff seeking an anonymous speaker's identity must establish a good faith basis to contend that the speaker committed defamation. Other courts applied the "motion to dismiss" standard - in other words, could the plaintiff's defamation claim survive a motion to dismiss.

The Washington court rejected both standards, however, in favor of a standard that requires the plaintiff to provide supporting evidence beyond the pleading standards before an anonymous speaker's identity is released. Applying this more stringent standard, the court held that Thompson was not entitled to disclosure of the Avvo.com poster's identity.

Post Authored by Julie Tappendorf