Defamation Claim Against Blogger Remanded

When social media goes wrong it can go very wrong.

A Los Angeles Assistant District Attorney John P. Frey, known by his blogger persona “Patterico,” must face allegations of emotional and financial injury he allegedly caused conservative political activist Nadia Naffe in his blogs and tweets.

The 9th U.S. Circuit Court of Appeals found Monday that Frey’s posts were not related to his work as a county prosecutor, holding that his comments were acts of a private citizen. Thus Naffe’s suit did not support her federal civil rights violation claims.

But Naffe, who says she was the victim of identity theft and suffered health problems as a result of stress, can still pursue state law claims in federal court, the panel held.

The case was remanded to the Los Angeles trial judge. The panel said the trial judge improperly evaluated the potential amount of damages in the controversy, which must be over $75,000 to stay in federal court.

The panel said, “We cannot say to a legal certainty that Naffe’s claims are worth less.”

The Dispute

Frey writes a conservative blog commenting on politics, media and criminal law, according to the court. His site includes a disclaimer that the opinions are his own and he is not writing in his official capacity.

Naffe and her former colleague James O’Keefe, also a conservative political activist, had a falling out in 2011.  She accused him of sexual assault in New Jersey, the opinion states.  Frey and O’Keefe are friends.  Sometime after Naffe’s lawsuit was filed Frey began posting unfavorable comments about Naffe on his blog and accused her of lying about O’Keefe, including calling her a “liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest and absurd,” the court said.

He also posted 200 pages of a deposition transcript in an unrelated lawsuit by Naffe and a former employer that included substantial private information, including her social security number and mother’s maiden name.  Then she was notified that people made unauthorized changes to her credit report using her social security number.

In 2012, Naffe filed suit against Frey, including one federal civil rights claim and six state law claims that include invasion of privacy, defamation, infliction of emotional distress and negligence.

The case now goes back to U.S. District Judge George Wu to determine if potential state law damages surpass the $75,000 required to remain in federal court.

Judges Wallace Tashima and Jacqueline Nguyen joined in the opinion by Judge Richard Tallman.

Case: Naffe v. Frey, No. 13-55666





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