A conservative blogger’s attempts to proceed with a federal suit against a California Deputy District Attorney failed when the Court of Appeals for the Ninth Circuit upheld the dismissal of her claim.
The case was a battle of conservative bloggers. The defendant, John Patrick Frey, is a criminal prosecutor in Los Angeles County assigned to the gang unit. By night, he maintains a blog, Patterico's Pontifications (patterico.com), and a Twitter handle, @Patterico. On both, he writes and comments about—among other things—conservative politics, liberal media bias, and criminal law. Although he frequently references his position as a Deputy District Attorney in his posts and Tweets, his blog contains the following message: "The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer." Frey's Twitter page displays a similar disclaimer.
The plaintiff, Nadia Naffe, is a political activist. She is also a former friend and colleague of James O'Keefe, a conservative activist who claims to "specializ[e] in producing undercover videos that style themselves as 'exposés' of liberal political misdeeds." Naffe admits to assisting O'Keefe with at least one of his "sting operations," a 2010 plot to wiretap Representative Maxine Waters's congressional district office, which is located in Los Angeles. Naffe and O'Keefe had a falling out in mid-2011 when Naffe accused O'Keefe of sexually assaulting her in a New Jersey barn.
Following the Naffe/O’Keefe dust up, Frey (who was also a friend of O'Keefe) wrote eight unfavorable articles about Naffe that he posted to his blog. He also Tweeted several dozen threatening and harassing statements about Naffe. In these blog posts and Tweets, Frey accused Naffe of lying about the barn incident and filing frivolous lawsuits against O'Keefe. He also called Naffe a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd. Finally, in one Tweet he insinuated that Naffe broke the law when she accessed O'Keefe's emails: "@NadiaNaffe My First task is learning what criminal statutes, if any, you have admitted violating."
Frey also posted to his blog over 200 pages of a deposition transcript from an unrelated lawsuit between Naffe and her former employer. The transcript contained substantial private information, including Naffe's social security number and her mother's maiden name. After Frey posted this information, Naffe received emails from Experian notifying her that unauthorized individuals had made changes to her credit report and were fraudulently using her social security number.
In late 2012, Naffe filed a lawsuit against Frey, the County of Los Angeles, and several others in federal district court. The federal claim arose under 42 U.S.C. § 1983 . According to Naffe, "[i]n abusing his position as a Deputy District Attorney . . . , FREY acted under color of state law in his continuous harassment of PLAINTIFF via his website, blog and Twitter account. FREY'S harassment of PLAINTIFF violated her First Amendment constitutional right to petition the government for redress of grievances."
A 1983 action allows a plaintiff to sue a person who acts under “color of law” and deprives the plaintiff of any rights guaranteed by the Constitution. Police, for example, are often targets of 1983 actions – for example, by executing a warrantless search. That conduct would violate the Fourth Amendment.
The key question in this case was whether Frey was acting in his official capacity when he wrote his blog posts. If so, Naffe would likely be able to proceed with the case. If not, the 1983 claim would fail. The trial court decided, and the appellate court agreed, however, that Frey was not acting “under color of law” when he laid into Naffe.
In reaching its conclusion, the court pointed to some very practical points. First, Frey made it clear, via disclaimers, that he was not acting in his official capacity. His comments were his own and not those of his employer.
Second, the time stamps on Frey’s posts – which were early mornings or late evenings -- demonstrated he engaged in his vendetta on his own time. Apparently, being a vindictive jerk is just Frey’s hobby, not his occupation.
And his tweet where he talked about looking into what criminal statutes Naffe may have violated, while cutting close to his official duties, was not enough to support a 1983 claim. Naffe had no evidence Frey actually initiated an investigation or opened a file.
The lesson for any public employee who uses social media is to make it clear what hat you are wearing, and not wearing, when you blog, post or tweet. Using a disclaimer, and not blogging during the work day, may save you and your employer from liability.
And that is a good thing no matter your political persuasion.