Tracy Twiman committed suicide on July 9, 2019, and was preceded by a few weeks of severe mental illness including the adoption of Law’s different beliefs. About a week later, Mrs. Sloan Bella appeared on an animated radio show (“Ground Zero Show”), with some of Q’Anon’s followers, to report – among other things – that Bella had engaged in psychic contact with the late Twyman in which Twyman’s ghost claimed to be killing. While Bella apparently didn’t mention him by name on the radio show, the effect was that many conspiracy professionals on social media began targeting Mr. Gardener as Tuiman’s ostensible killer.
Not enjoying this new notoriety, Al-Bustani sued Bella, other conspiracy followers, and entities that appeared to have been involved in the production of the show, on a variety of grounds, including copyright infringement (or his name and likeness), and copyright infringement. Personal in Washington. (“WPRA”), false light invasion of privacy, intentional infliction of emotional distress, and negligence of causing emotional distress. This suit was filed in the US District Court for the Western District of Washington.
Shortly after filing the complaint, and representing herself in favor, Bella sent a letter to the court denying liability to the gardener and mentioning the Washington Anti-SLAPP Act, Washington’s Uniform Public Expression Protection Act (“UPEPA”). The court decided to treat the letter as a private motion filed under Washington’s UPEPA and requested a briefing from Al-Bustani, which was submitted by his attorneys. This led to the court order in Bustani v. Algeria, 2022 WL 3213331 (WDWa., August 9, 2022), which I will talk about next.
The Court first noted that Washington UPEPA had previously been conciliated by the U.S. Court of Appeals for the Ninth Circuit so that if a defendant challenged only the sufficiency of a claim, the court must apply Federal Civil Procedure Rule 12(b)(6) to determine whether the claim was cited correctly, but if the defendant challenges whether the plaintiff has sufficient facts to support his claim, the FRCP 56 Summary Judgment Standard should apply instead. The difference between the two is that the FRCP 12(b)(6) motion to dismiss does not give the plaintiff an opportunity to discover, but the FRCP 56’s motion for summary judgment allows in some circumstances. Here, the first Bella is essentially challenged, that is, whether the gardener adequately defended his claims against her.
The first lawsuit considered regarding Gardener was his copyright infringement claim which he decided to drop anyway, and thus the court dismissed that claim with bias.
Gardener’s second claim was based on the Child Rights Protection Act which essentially protects a person’s image and provides for a claim of infringement when another person uses that likeness for advertising or commercial purposes, whether for profit or not. This claim was rejected for a number of reasons: the claim was based on closing statements, it was not alleged that Bella had used the name Apostani on the show, so anything Bella said was not an advertisement or endorsement using the name Apostani.
Most intriguing was the third Bastian claim, which was violating privacy by false light. This tort requires the plaintiff to prove that the defendant published an order that placed the plaintiff in a false light, that the false light would be extremely humiliating to a reasonable person, and the defendant either knew about it or acted recklessly. Gardener claimed that these were met when Bella appeared on a radio show, recounting her alleged psychiatric conversation with the late Twiman which led to the suspected murder of the Gardener, and that Bella either knew or should have known that her conversation with the late Twiman was. wrong and that bad consequences would stem from her telling her false story.
On this point, Bella attempted to claim that her statements were nothing more than her opinions which would be protected by UPEPA in Washington, but the court noted that her statements went so far as to lead to the Gardener being charged with murder, and thus Bella’s request to dismiss this claim would be dismissed.
The next reason for the gardener's lawsuit was the intentional infliction of emotional distress, which required that the defendant had engaged in extreme or outrageous behavior that had resulted in the plaintiff's emotional distress. Here, Bella argued that her brief description of "Mrs. Tweyman's inanimate circumstances" fell short of outrageous. However, the court noted that Bella had made her remarks on a large-scale national syndicated radio program, and therefore was likely to be enforceable. A similar analysis has been applied to Gardener's last claim, which was of negligence in causing emotional distress, and Bella's suggestion of hitting these claims would therefore be rejected.
This view illustrates the very close relationship between the UPEPA's own motion and the FRCP 12(b)(6) regular motion to reject, as well as a summary judgment proposal. If one were to call UPEPA's motion either a "Motion to Deny Doping" or an "Early Brief Judgment Proposal", it wouldn't be too far off because the analysis of the claims to be made by the Court is exactly the same.
What calls a special motion from an ordinary motion to reject or a motion for summary judgment is not the course of analysis of the court, but the procedural merits of a special request. These procedural advantages include that the court must resolve the application very early in the proceedings, litigation between the transferee and the defendant is suspended pending resolution of the motion, and the applicant has a right of appeal if the particular motion is rejected. However, the basic analysis of a particular cause of action is exactly the same once the cause of action is determined to be within the scope of UPEPA's protection.
Another tip from this opinion is that private suggestions don't do that de facto It succeeds once the subject matter of the cause of action is determined to be within the scope of the law. On the contrary, if the party bringing the cause of action can show that it has a meritorious case, the special application must be rejected. The only thing the private movement does is to pull this test of the case from the end of the case, when the suggestions of summary judgment are usually made after the discovery is closed, to the front of the case so that initially unworthy cases can be dispensed with.
But this raises another important point: those litigants who provide causes of action that fall within the scope of UPEPA (or any law against SLAPP) must be prepared at the moment of filing a lawsuit to prove to the court that the cause of action is truly meritorious. Provided otherwise, those litigants who wish to bring a case within the defendant's rights to freedom of speech, press, assembly or petition must obtain their respective pleadings and evidence on day one or else risk a UPEPA dismissal with bias.
This is the current running throughout UPEPA, and we will undoubtedly have many future opinions to explore in more depth.