Johnson v. Ryan

346 P.3d 789, 186 Wash. App. 562

• Court: Court of Appeals of Washington
• Decided: March 19, 2015
• Docket: No. 31837-1-III
• Status: Published

Opinions

¶1

Lawrence-Berrey, J.

James Ryan engaged in vitriolic Internet blogging against Yvonne Johnson. Johnson sued Ryan for defamation and tortious interference with a business expectancy. Ryan defended the suit, in part, by asserting the anti-SLAPP statute.¹ As permitted by that statute, Ryan filed a prediscovery motion to strike. He argued that Johnson’s claims should be dismissed because his speech was protected speech in that his attacks against Johnson were matters of public concern. The trial court agreed and dismissed Johnson’s claims. We hold that Ryan’s blogging was primarily for personal concern, not public concern, and reverse the dismissal of Johnson’s claims.

FACTS

¶2 As discussed later, we accept the facts and all reasonable inferences in the light most favorable to Yvonne Johnson, the party resisting the motion to strike.

¶3 The Spokane Civic Theatre (Theatre) is a not-for-profit, performing arts theater located in Spokane. The Theatre is a private foundation receiving support from private donors and operating with an endowment. On a donation web page, the Theatre notes:

Revenue from programming covers only 50 percent of our operating costs. We depend on the support and commitment of our community to make up the essential difference.

Clerk’s Papers (CP) at 29.

¶4 In 2005, the Theatre hired plaintiff Johnson as its executive artistic director. Johnson is a highly acclaimed theater veteran who was selected from scores of applicants. At the time of her hiring, the Theatre was on the cusp of financial ruin. By 2010, despite the economic recession, Johnson had doubled revenue for the Theatre. This economic feat was accomplished through a significant increase in ticket sales, expansion of the Theatre’s training camp for children, and numerous fundraising endeavors. Johnson’s financial acumen and ingenuity allowed the Theatre to expand its full-time staff by several positions, including a full-time music director.

¶5 On August 19, 2010, Johnson hired defendant James Ryan as full-time music director for the Theatre. Ryan moved with his family from another state to Spokane. He understood the job had a three-year term.

¶6 Two months after the hiring, Johnson terminated Ryan’s employment at the direction of the Theatre’s board. Prior to Ryan’s termination, the Theatre received an anonymous e-mail disclosing the nonmonogamous nature of Ryan’s marriage, as well as Ryan’s use of graphically nude photographs and texts while engaging in online sex solicitations. The Theatre also discovered that Ryan noted that he was employed by the Theatre and used his Theatre employee photograph in advertising for sex. According to Johnson, the Theatre learned that Ryan initiated some of his sexual solicitations while backstage on Theatre premises.

¶7 Johnson wrote a lengthy termination letter to Ryan. In summary, the letter noted that he was being terminated not because of his swinger lifestyle but because his coupling of his lifestyle with his employment at the Theatre had the potential for offending parts of the local community and thus reducing the Theatre’s donations. Ryan admits that he posted a discreet listing on Craigslist for sex, although he denies that it included any information that identified his name or his employer. Rather, he contends that all identifying information was forwarded to the Theatre by an anonymous e-mailer, who in turn had received it from someone Ryan had met through Craigslist.

¶8 Being without a job, Ryan had time to obsess over his firing from the Theatre. On October 18, 2010, Ryan began a public campaign to discredit Johnson for terminating his employment. According to Johnson, the campaign began when Ryan sent an e-mail to her and posted the message on Facebook, although the e-mail is not part of the record. On October 24, 2010, Ryan began posting negative statements about Johnson on the Internet via a blog entitled “thetyrannyofyvonne.” CP at 99.

¶9 Ryan obtained the domain names of “spokanecivic theater.org” and “spokanecivictheatre.org.” CP at 99. The Theatre’s domain address was “spokanecivictheatre.com.” The similarity in domain names caused confusion for those wishing to locate the Theatre’s website. Anyone who mistakenly searched for the Theatre’s website by utilizing one of his created addresses was immediately routed by Ryan’s design to his sites. On April 29, 2011, Ryan began posting negative statements about Johnson on his two sites. In general, these blogs provide a lengthy chronology of Ryan’s ongoing postemployment dispute with Johnson through various tribunals. This tedious chronology is set forth in some detail by the dissent. Within this tedious chronology is an isolated and vague reference that the Theatre board must be publicly held to account for failing to exercise its duties. This vague reference likely was to a wrongful discharge lawsuit that Ryan filed soon afterward against the Theatre.

¶10 Johnson alleges that Ryan sought to prevent her from gaining employment in the theater world. She cites a November 14, 2011 blog Ryan wrote:

As I was writing this, it occurred to me that Civic is locked in a self-imposed catch-22. The longer the board fails to seek a resolution [to my employment dispute], the longer Civic is likely to be stuck with Yvonne A.K. Johnson. People have been talking for a year now about her desire to find a bigger, better job and move on from here — a scenario that has been fantasized about with no small amount of glee. If it is true that Ms. Johnson has been job hunting, one has to imagine that prospective employers have probably taken the time to Google Civic and her name. They are not likely to skip past the second search result, which is this site. (They might even just enter http://www.spokanecivictheatre.org, assuming that that would be the correct domain.) A few minutes spent reading this ... is likely to induce a sense that Ms. Johnson would bring more drama and divisiveness than any respectable institution would care to have. So any fantasies you may have that Civic will soon be free of Ms. Johnson of her own accord are probably a bit unrealistic.

CP at 108.

¶11 In a similar vein, Ryan wrote in red letters at the beginning of a blog on February 8, 2013:

If you have arrived at this page because you are considering Yvonne A.K. Johnson [for a job] please feel free to contact me. I would be happy to put you in contact with individuals [of] status within the community [who] would lend supporting testimony to what you will read [here. I can be] reached at civicdoodyspokane@gmail.com.

CP at 104.

¶12 Johnson also alleges that Ryan’s blog attacks sought to coerce a financial settlement with the Theatre. In the same February blog, Ryan discussed a summary judgment ruling against him in the wrongful discharge lawsuit he filed against the Theatre. According to Ryan, prior to the dismissal of his lawsuit he offered to settle his case for one year’s salary and moving expenses but now that his lawsuit was dismissed, the Theatre would be required to pay “serious money” to “end this thing.” CP at 10. He also blogged that public ridicule is the only remedy for actions that fall into this category and this was their best chance to end this thing with a reasonable settlement and a nondisclosure.

PROCEDURE

¶13 On April 5,2013, Johnson filed suit against Ryan for intentional interference with business expectancy and defamation. Johnson sought damages and injunctive relief. In his amended answer, Ryan sought dismissal of Johnson’s complaint under RCW 4.24.525, the anti-SLAPP statute, together with an award of statutory damages and reasonable attorney fees.

¶14 On May 31, 2013, Ryan brought a motion to strike, pursuant to RCW 4.24.525. Ryan argued that his online postings simply provided a public forum for discussion and dissemination of commentary, complaints, and general information related to the Theatre. He asserted that his online cyberconduct addressed matters of public concern, evidenced by Internet traffic the blog purportedly received. Ms. Johnson countered that the postings were merely a private concern and not protected by the statute.

¶15 The trial court granted Ryan’s motion after concluding that Ryan’s online blogging activity addressed speech on a matter of public concern. The trial court awarded Ryan $10,000.00 in statutory damages and $8,358.40 in reasonable attorney fees and costs. Johnson appealed.

LAW AND ANALYSIS

¶16 In 1989, Washington adopted the nation’s first antiSLAPP law, still codified under RCW 4.24.500 to .520. The law, known as the “Brenda Hill Bill,” provides immunity from civil liability for claims based on good-faith communication with the government regarding any matter of public concern. Tom Wyrwich, A Cure for a “Public Concern Washington’s New Anti-SLAPP Law, 86 Wash. L. Rev. 663, 669 (2011). The Brenda Hill Bill was not without defect, since it did not provide a method for early dismissal. Id. With courts unable to dismiss SLAPPs before discovery, defendants had no means of escaping the significant legal expenses SLAPPS purposefully inflicted. Id. at 669-70.

¶17 In March 2010, the Washington Legislature passed its Washington Act Limiting Strategic Lawsuits Against Public Participation. Laws of 2010, ch. 118, § 4. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. Wyrwich, supra, at 663. The 2010 Washington Act contains a declaration of purpose:

(1) The legislature finds and declares that:

(a) It is concerned about lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances;

(b) Such lawsuits, called “Strategic Lawsuits Against Public Participation” or “SLAPPs,” are typically dismissed as groundless or unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their productive activities;

(c) The costs associated with defending such suits can deter individuals and entities from fully exercising their constitutional rights to petition the government and to speak out on public issues;

(d) It is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process; and

(e) An expedited judicial review would avoid the potential for abuse in these cases.

(2) The purposes of this act are to:

(a) Strike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern;

(b) Establish an efficient, uniform, and comprehensive method for speedy adjudication of strategic lawsuits against public participation; and

(c) Provide for attorneys’ fees, costs, and additional relief where appropriate.

Laws of 2010, ch. 118, § 1.

¶18 This declaration of purpose evidences the legislative goals of balancing the rights of both plaintiffs and defendants, yet allowing expedited judicial review and dismissal of those defamation claims brought abusively for the primary purpose of chilling protected public speech. The legislature directed courts to apply and construe the Washington Act “liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts.” Id. § 3.

¶19 The new addition to Washington’s anti-SLAPP laws is codified at RCW 4.24.525. RCW 4.24.525(4)(a) allows a party to bring a special motion to strike any claim that is based on an “action involving public participation and petition.” Subsection 4 of the statute outlines the procedure to follow to respond to a SLAPP suit. The subsection provides:

(4)(a) A party may bring a special motion to strike any claim that is based on an action involving public participation and petition, as defined in subsection (2) of this section.

(b) A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.

(c) In making a determination under (b) of this subsection, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

RCW 4.24.525.

“In deciding an anti-SLAPP motion, a court must follow a two step process. A party moving to strike a claim has the initial burden of showing by a preponderance of the evidence that the claim targets activity ‘involving public participation and petition,’ as defined in RCW 4.24.525(2). U.S. Mission Corp. v. KIRO TV, Inc., 172 Wn. App. 767, 782-83, 292 P.3d 137, review denied, 177 Wn.2d 1014, 302 P.3d 181 (2013). If the moving party meets this burden, the burden shifts to the responding party ‘to establish by clear and convincing evidence a probability of prevailing on the claim.’ RCW 4.24.525(4)(b). If the responding party fails to meet its burden, the court must grant the motion, dismiss the offending claim, and award the moving party statutory damages of $10,000 in addition to attorney fees and costs. RCW 4.24.525(6)(a)(i), (ii).”

Davis v. Cox, 180 Wn. App. 514, 528, 325 P.3d 255 (quoting Dillon v. Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 67-68, 316 P.3d 1119, review granted, 180 Wn.2d 1009, 325 P.3d 913 (2014)), review granted, 182 Wn.2d 1008, 345 P.3d 784 (2014).

¶20 Because RCW 4.24.525 provides an expedited summary judgment procedure, courts apply summary judgment standards when ruling on RCW 4.24.525 motions to strike: “ ‘[T]he trial court may not find facts, but rather must view the facts and all reasonable inferences therefrom in the light most favorable to the plaintiff.’ ” Id. (quoting Dillon, 179 Wn. App. at 90). In addition, we review the grant or denial of an anti-SLAPP motion de novo. Dillon, 179 Wn. App. at 70; City of Longview v. Wallin, 174 Wn. App. 763, 776, 301 P.3d 45, review denied, 178 Wn.2d 1020, 312 P.3d 650 (2013).

“PUBLIC PARTICIPATION” UNDER ANTI-SLAPP STATUTE

¶21 RCW 4.24.525(2) identifies the communications protected by the statute. Subsections (a) through (c) involve communications to government. Subsections (d) and (e) involve speech in other contexts. RCW 4.24.525 reads, in relevant part:

(2) This section applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this section, an “action involving public participation and petition” includes:

(d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or

(e) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern.

(Emphasis added.) Because this case concerns “written statements” instead of “other lawful conduct,” our review of the lower court’s dismissal is limited to RCW 4.24.525(2)(d). We, therefore, next examine the “public forum” and “public concern” requirements of RCW 4.24.525(2)(d).

¶22 Public Forum. Courts have readily found that the Internet is a public forum. ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 113 Cal. Rptr. 2d 625 (2001). Hatch v. Superior Court, 80 Cal. App. 4th 170, 201, 94 Cal. Rptr. 2d 453 (2000) noted that Internet communications are “classical forum communications.” (Footnote omitted.)

¶23 Public Concern. Because the California antiSLAPP statute serves as a model for the Washington Act, some authorities have applied the borrowed statute rule to interpret the Washington Act. See Alaska Structures, Inc. v. Hedlund, 180 Wn. App. 591, 599, 323 P.3d 1082 (2014); Fielder v. Sterling Park Homeowners Ass’n, 914 F. Supp. 2d 1222, 1231 n.4 (W.D. Wash. 2012); Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1110 (W.D. Wash. 2010). “Under the borrowed statute rule, courts find that when the legislature borrows a statute from another jurisdiction, it implicitly adopts that jurisdiction’s judicial interpretations of the statute.” Wyrwich, supra, at 690. However, California’s statute uses the phrase “public interest,” whereas Washington’s statute uses the phrase “public concern.” “[W]here the legislature modifies or ignores a provision of the borrowed statute, it implicitly rejects that provision and its corresponding case law.” Id. “The Washington State Supreme Court has found that when the legislature deviates from a model act, it is ‘bound to conclude’ that the deviation ‘was purposeful’ and evidenced an intent to reject those aspects of the model act.” Id. (quoting State v. Jackson, 137 Wn.2d 712, 723, 976 P.2d 1229 (1999)). We also note that both Washington and federal authorities have defined “public concern” in the context of defamation law. Accordingly, when determining whether speech or conduct is of “public concern,” Washington courts should focus on well-developed Washington and federal decisional law rather than California decisions.²

¶24 Speech is of public concern when it can “ ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’ ” Davis, 180 Wn. App. at 531 (internal quotation marks omitted) (quoting Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011)). For purposes of analyzing federal authorities, Alaska Structures quotes Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132, 2 Cal. Rptr. 3d 385 (2003):

“First, ‘public interest’ does not equate with mere curiosity. (Time, Inc. v. Firestone, [424 U.S. 448, 454-55, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976)]; Briscoe v. Reader’s Digest Association Inc., (1971) 4 Cal.3d 529, 537 [93 Cal.Rptr. 866, 483 P.2d 34].) Second, a matter of public interest should be something of concern to a substantial number of people. (Dun & Bradstreet v. Greenmoss Builders, [472 U.S. 749, 762, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985)].) Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. (Ibid.; Hutchinson v. Proxmire (1979) 443 U.S. 111, 135 [61 L.Ed.2d 411, 431, 99 S.Ct. 2675].) Third, there should be some degree of closeness between the challenged statements and the asserted public interest (Connick v. Myers (1983) 461 U.S. 138, 148-149 [75 L.Ed.2d 708, 720-721, 103 S.Ct. 1684]); the assertion of a broad and amorphous public interest is not sufficient. (Hutchinson v. Proxmire, supra, 443 U.S. at p. 135 [61 L.Ed.2d at p. 431]). Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy . . . .’ (Connick v. Myers, supra, 461 U.S. at p. 148 [75 L.Ed.2d at p. 721].) Finally, ‘those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.’ (Hutchinson v. Proxmire, supra, 443 U.S. at p. 135 [61 L.Ed.2d at p. 431].)”

Alaska Structures, 180 Wn. App. at 602-03 (alterations in original).

¶25 Our own courts have discussed the meaning of “public concern” in the context of free speech rights. In White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997), the court held that the challenged speech was a matter of public concern. There, Judy White was a secretary/clerk typist at a state-run nursing home. Id. at 4-5. After being so employed for several years, the nursing home hired Evelyn Blanchard to be the director of nursing services. Id. at 5. The working relationship was often strained between White and Blanchard. In 1988, a resident of the home became very disruptive and behaved in a way that might have caused harm to himself and others. Id. Eventually, Blanchard directed that the resident be placed in a restraint jacket. Id. The jacket was in place for a couple hours until the home’s medical director refused to sign an order permitting its use. Ultimately, White filed an incident report alleging that Blanchard committed patient abuse in authorizing the use of the jacket. Id. at 6. After an outside investigation, the allegation was dismissed. Soon after, White was transferred to a different facility. Unbeknownst to her, the transfer had been contemplated months before the incident report. White sued for wrongful transfer. The trial court granted the home’s summary judgment motion. On appeal, our high court affirmed the dismissal on causation grounds. Prior to reaching causation, however, the court held:

Whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the statement, as revealed by the whole record. Connick, 461 U.S. at 147-48. Content is the most important factor.

The content of White’s speech — suspected abuse of a nursing home patient — involves an issue of public concern. The public concern over proper care of vulnerable nursing home patients is reflected in RCW 70.124, a statute which requires nursing home employees to report alleged abuse or mistreatment of nursing home patients. The fact that an investigation finds the report of suspected abuse to be without merit does not affect the importance of the content to the public.

The record shows that White and Blanchard did not get along and that White criticized Blanchard on a number of occasions. . . . The fact that White may have had a personal interest in reporting the incident does not diminish the concern the public would have in this matter.

Id. at 11-13 (some citations omitted).

¶26 In Alpine Industries Computers, Inc. v. Cowles Publishing Co., 114 Wn. App. 371, 57 P.3d 1178 (2002), this court held that the challenged speech was a matter of public concern. There, a reporter for the Spokesman-Review wrote a story about a recent federal court decision favoring Microsoft over a local company, Alpine Industries Computers Inc. The facts from the story came from the federal court file and primarily was based on the judge’s memorandum opinion. Id. at 376. The gist of the story was that Microsoft obtained a large judgment against Alpine for selling pirated software and that Alpine’s owner had acknowledged that he had wrongfully sold counterfeit software. Id. at 374-75. The company brought suit against the newspaper’s owner for defamation. In determining whether the story was of “public concern,” we wrote:

Whether an allegedly defamatory statement pertains to a matter of public concern depends on the content, form, and context of the statement as shown by the entire record. Dun & Bradstreet, 472 U.S. at 761. Here, the challenged story relates to a court decision resolving an intellectual property dispute between a major software manufacturer and a local retailer. Viewed narrowly, the story pertains to a private dispute between two business entities. In a broader context, however, the dispute touches on a matter of public importance, software piracy. The public concern is heightened by the fact that Alpine apparently sold counterfeit software to the general consumer. In an age where the use of personal computers is widespread, the retail distribution of pirated software is a matter of acute importance to general consumers. This is a matter where the First Amendment plays a role in ensuring the free flow of information to the public. Accordingly, the Dun & Bradstreet factors indicate the Alpine case was a matter of public concern deserving of heightened protection.

Id. at 393-94 (citation omitted). Other cases where we held that the challenged speech involved a matter of public concern include Davis, 180 Wn. App. at 530 (because nonviolent boycotts are protected by the First Amendment to the United States Constitution, because the boycott was a form of protest of America’s role in resolving the Middle East conflict, and because the plaintiff sought the remedy of injunctive relief, the speech was protected under RCW 4.24.525), and Spratt v. Toft, 180 Wn. App. 620, 632, 324 P.3d 707 (2014) (former supervisor’s alleged defamatory statements against coworker were public concern because the statements, made in connection with his political campaign, could fairly be considered as relating to a matter of political, social, or other concern to the community).

¶27 In contrast, in Tyner v. Department of Social & Health Services, 137 Wn. App. 545, 154 P.3d 920 (2007), we held that the challenged speech did not involve a matter of public concern. There, Paula Tyner was an administrator for a department-run facility that cared for adults with developmental disabilities. Id. at 552. In the course of her employment, Tyner investigated an employee’s sexual harassment complaint. Id. at 552-53. Later, human resources directed that the complaint be investigated further by a person a step above Tyner’s rank. Id. at 553. Tyner commented that the complaint should not be forwarded to her supervisor, Jody Pilarski, because Tyner believed Pilarski would not do a thorough job. Id. Human resources disagreed and assigned the investigation to Pilarski. Id. During the course of this investigation, Pilarski received numerous complaints that Tyner had created a hostile work environment. Id. at 553-54. As a result of these complaints, Tyner was reassigned to region 5 headquarters in Tacoma. Id. at 554. Due to budget cuts, Tyner’s position was eliminated and she was given different job duties at a different facility. Tyner sued. In her suit, Tyner claimed that she was retaliated against for exercising free speech, specifically, her comment that her supervisor should not be allowed to investigate the employee complaint. Id. at 555. She asserted that her comment addressed a matter of public concern because it involved a sexual harassment issue. Id. at 557. In rejecting her argument, we stated:

In determining whether an employee [’s speech is of public concern], we examine several factors, including the content, form, and context of the speech in light of the entire record. Connick[, 461 U.S. at 147-48]. The speaker’s intent is also a factor — “[w]as the employee acting as an aggrieved employee, attempting to rectify problems in the employee’s working environment, or was he or she acting as a concerned citizen bringing a wrong to light?” Edwards [v. Dep’t of Transp.], 66 Wn. App. [552,] 560[, 832 P.2d 1332 (1992)].

. . . Tyner’s request that Pilarski not investigate [the sexual harassment] allegations . . . based on Tyner’s opinion that Pilarski did not do a thorough job . . . expressed only her personal dissatisfaction. . . .

If Tyner’s comment were construed as a matter of public concern, any speech even tangentially related to a public issue could satisfy the public concern requirement for First Amendment protection. This would allow even routine criticism of supervisors, internal office decisions, and policies to be categorized as matters of public interest, a scenario we cautioned against in Wilson [v. State, 84 Wn. App. 332, 342, 929 P.2d 448 (1996)].

Id. at 557-59 (emphasis added) (third alteration in original).

¶28 In Dillon, we find further support for the proposition that speech that only tangentially implicates a public issue is not a matter of public concern:

“[W]hen the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.”

Dillon, 179 Wn. App. at 72 (quoting Martinez v. Metabolife Int’l, Inc., 113 Cal. App. 4th 181, 188, 6 Cal. Rptr. 3d 494 (2003)).

¶29 In this case, we must construe all evidence and inferences in the light most favorable to Johnson, the party-resisting the summary dismissal of her defamation claim. In doing so, we must determine whether the content, form, and context of the speech are primarily of a private or primarily of a public concern. As noted in Tyner, we may also examine the speaker’s intent or motive. By examining the primary content, form, and context, we better achieve the legislative purpose of balancing the rights of both litigants so that the expedited summary process weeds out only those defamation claims brought for the abusive primary purpose of chilling valid free public speech. Conversely, were we to align ourselves with the dissent’s California approach and examine whether the speech had merely a “connection” to a matter of public concern, we would be ignoring this stated legislative purpose.

¶30 Here, the primary content of Ryan’s speech is a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss. The primary intent of the speech is not some lofty public good, but merely establishing that his employer was wrong in firing him. The form of the speech is a blog, useful for conveying either private or public concerns. The context of the speech arises out of a private employment dispute. Ryan primarily complains about how he was wrongfully terminated, what he has endured through various agency and court actions, and his desire for “serious money.” The mere fact that these dominant themes are occasionally interspersed with collateral issues of protected public speech — e.g., the executive director of a theater that depends on public participation and donations has a tyrannical management style — is not enough to transform a private dispute into a matter of public concern. In short, the content and context of Ryan’s speech is primarily a matter of his own private concern and, therefore, is not protected public speech under RCW 4.24.525.

ATTORNEY FEES AND COSTS

¶31 Johnson seeks an award of reasonable attorney fees, litigation costs, and special damages of $10,000 under RCW 4.24.525(6)(a). RCW 4.24.525(6)(b) permits such an award if the court finds that a special motion to strike is frivolous or brought solely to cause unnecessary delay. Although we disagree with Ryan’s claim of public concern, we do not find that his motion was frivolous, nor do we find it was brought to cause unnecessary delay. We therefore reject Johnson’s request.

¶32 In conclusion, we reverse the trial court’s order striking Ms. Johnson’s claims. We reinstate her claims and remand this case for further proceedings consistent with this opinion.

Siddoway, C.J., concurs.

1 Strategic Lawsuit Against Public Participation, RCW 4.24.510.

2 In a very recent decision interpreting RCW 4.24.525, our Supreme Court stated that the Washington and California statutes had similarities but also “significant differences,” the legislative purpose of the Washington and California statutes is different, and “[o]ur legislature thus phrased its findings more narrowly than California’s.” Henne v. City of Yakima, 182 Wn.2d 447, 458, 341 P.3d 284 (2015).