and submitted August 28, 2018
Clackamas County Circuit Court 17CV05259; Paul E. Winters,
Judge pro tempore.
Jeffrey S. Frasier argued the cause for appellant. Also on
the briefs was Chenoweth Law Group, PC.
D. Snyder argued the cause for respondent. Also on the brief
was Law Offces of Judy Snyder.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
a tort action for defamation and invasion of privacy.
Defendant's friend accused plaintiff of sexual
misconduct, resulting in criminal charges against plaintiff.
Plaintiff was acquitted of those charges. Before, during, and
after plaintiff's trial, defendant made online statements
about the case that were sympathetic to her friend. Plaintiff
alleges that those statements were defamatory and effected a
tortious invasion of privacy. On defendant's special
motion to strike under Oregon's anti-Strategic Lawsuits
Against Public Participation statute, the trial court
concluded that the statements at issue were nonactionable
statements of opinion protected by the First Amendment to the
United States Constitution under the framework established in
Neumann v. Liles, 358 Or. 706, 369 P.3d 1117 (2016),
and dismissed the case. Plaintiff appeals, assigning error to
the trial court's grant of defendant's special motion
to strike. Held: The trial court did not err. When
each of the three challenged statements is considered as a
whole, within its respective context, each gives the
impression of a strongly held opinion or viewpoint and, as
such, would not allow a reasonable factfinder to find that
any of the statements communicated an assertion of objective
Or.App. 403] LAGESEN, P. J.
a tort action for defamation and invasion of privacy.
Defendant's friend, Ferguson, accused plaintiff of sexual
misconduct. The accusations resulted in criminal charges
against plaintiff. He was acquitted of those charges. Before,
during, and after plaintiff's trial, defendant made
online statements about the case that were sympathetic to her
friend. Plaintiff alleges that those statements were
defamatory and effected a tortious invasion of privacy. On
defendant's special motion to strike under Oregon's
anti-Strategic Lawsuits Against Public Participation
(anti-SLAPP) statute, ORS 31.150, the trial court concluded
that the statements at issue were nonactionable statements of
opinion protected by the First Amendment to the United States
Constitution under the framework established in Neumann
v. Liles, 358 Or. 706, 369 P.3d 1117 (2016), and
dismissed the case. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
relevant facts are not disputed. As noted, defendant's
friend, Ferguson, accused plaintiff of sexual misconduct. The
accusations led to two criminal charges against plaintiff in
Washington; a jury acquitted plaintiff of both charges.
Before and shortly after plaintiffs trial, defendant posted
two online statements about the charges on Ferguson's
Facebook page. Additionally, during the trial, defendant
posted a comment on the website for the newspaper The
Columbian. Those statements form the basis of
plaintiff's claims against defendant.
made the first statement in response to a Facebook post by
Ferguson. Ferguson's post stated:
"Tomorrow is a big day for me, [it's] a big day for
a few folks, actually. I am eager to witness the judicial
system working at full capacity! At the end of this trial,
there will be 12 people that will decide the outcome of a
very disturbing experience that I had almost a year and a
half ago. IS he guilty or isn't he? NO matter what, he IS
GUILTY. I am confident that my strength and conviction will
play a big part in the outcome and I trust how that will be
presented to all parties. A woman can be friendly, she can
smile a lot, she can be funny, open and direct. Judge how you
wish, but [296 Or.App. 404] please know that these qualities,
in NO way give anyone permission to force themselves onto
(Uppercase in original.) Defendant, among others, commented
on that Facebook post. Defendant's comment stated:
"[W]e are 100% standing with you and by you. [W]e know
who you are. [S]o we know this man is 100% guilty, and needs
to pay the price for his lack of character and his criminal
behavior.... [I'm] so sorry you had to experience
something like this in your life, and [I] am praying for you
and this case......You are one of the best people I know ....
[heart emoticon you]."
made the second statement during plaintiffs criminal trial,
with a post on the website for The Columbian. The
paper had published an article about the case that described
Ferguson's allegations and plaintiff's position as
"a case of 'he-said, she-said' and that it was a
consensual encounter," and that Ferguson's version
of events was not true. Defendant's comment stated:
"I know this person on a person [al] level, and she is
telling the truth.....she is a fine [upstanding] person, a
great mother, and a person of respectability and
honesty.....she would never ever make this up....it happened,
you can believe it......I hope this creep gets what he
deserves..... what he did was traumatizing and just plain
wrong.....He is a liar.....and a sexual predator.... BE
(Uppercase in original.)
made the third statement on Ferguson's Facebook page
after the jury acquitted plaintiff. Responding to the
acquittal, Ferguson posted "OJ got off too...but we all
know he did it." Defendant commented on the post:
"Yes, and we all know this guy did it too. Justice at
its worst...so sorry they couldn't get it
right....[it's] a tragedy, for the community...hugs
girl....we all stand with you, for you, and against
thereafter, plaintiff filed this action. Defendant filed a
special motion to strike under ORS 31.150. Defendant asserted
that her comments "are written statements made in a
public forum or public place in connection with an issue [296
Or.App. 405] of public interest, ORS 31.150(2)(d)," and
"[plaintiff] cannot meet his burden of establishing that
there is a probability that he will prevail on the claims,
ORS 31.150(3)," entitling her to dismissal of the case.
In particular, defendant contended that under
Neumann, 358 Or. 706, her statements qualified as
opinions that were protected by the First Amendment and were,
therefore, not actionable.
opposed the motion. He did not dispute that defendant's
statements were the type that permitted her to invoke the
anti-SLAPP procedures, but, instead, contested
defendant's assertion that her statements qualified as
nonactionable opinions under Neumann, arguing that
each statement was "presented as an ...