We have apparently entered into an era in which a public servant who does his job as he should now runs the risk of being named a defendant in one of those strategic lawsuits against public participation (SLAPP) discussed in recent LouisianaVoice posts.
The very prospect of Legislative Auditor Daryl Purpera being sued for issuing a press release about an audit report his office performed should send a chill throughout the Fourth Estate—mainstream media as well as bloggers. Who’s to say you can’t be sued for discussing an audit report over a Frappuccino at Starbucks?
Welsh Alderman Jacob Colby Perry recently won a court victory when the judge threw out not one, but four SLAPP LAWSUITS against him but now the attorney for the four who sued him—the Welsh mayor, her children, and the police chief—is attempting to get the presiding judge recused from the case in a desperate attempt to keep the frivolous lawsuits alive.
And now we have a STORY in the Baton Rouge Advocate telling us that Baton Rouge attorney Jill Craft is suing Purpera on behalf of her client, former Secretary of Veterans’ Affairs David LaCerte—not because an investigative audit by Purpera’s office found that LaCerte, a Bobby Jindal appointee, allowed fraudulent behavior in his department, but because Purpera had the audacity to issue a press release saying so.
The state asked that 19th Judicial District Court Judge William Morvant dismiss the lawsuit on the grounds that Purpera was protected by the same statute that protects the speech of legislators.
Incredulously, Morvant ruled that while the auditor’s investigative report was protected, the press release issued by Purpera’s office was not. “I don’t think the press release falls within that immunity,” Morvant said, apparently with a straight face.
That immediately raises the question of whether or not the media are free to write their own story from the report. In other words, yer honor, can I, as a news reporter, write a comprehensive story that accurately reflects the contents of the audit without fear of some attorney swooping down and SLAPPing me?
- Can LouisianaVoice or The Advocate, or any other medium be SLAPPed for writing that a contract for the privatization of a state hospital contained 50 blank pages, even though it did?
- Is it defamation that reporters wrote about the oil and gas industry pouring contributions into the campaigns of a governor who killed a lawsuit against 97 oil and gas companies?
- Can Lamar White be SLAPPed because he wrote about U.S. Rep. Steven Scalise speaking at an event attended by David Duke? That certainly didn’t reflect well on Scalise’s image.
- Can Bob Mann be SLAPPed for admonishing Republican politicians to quit calling themselves “pro-life” if they “can’t speak out on behalf of sick kids” after Louisiana’s congressional delegation remained silent after Congress allowed the CHIP program to expire? That was, after all, a pretty damning condemnation of those self-righteous Republicans who seem to believe life begins at conception and ends at birth.
- Can Robert Burns be SLAPPed for documenting payroll fraud on the part of an employee of a state board?
- Can The Lens, a New Orleans online news service, be SLAPPed for exposing the Orleans Parish District Attorney for issuing bogus subpoenas?
- Can a Houma blogger be SLAPPed for criticizing Sheriff Jerry Larpenter? Apparently the sheriff thought he could be at least raided. Instead Larpenter wound up having to pay substantial damages in the ensuing lawsuit, so at least there’s that.
We’ve already seen SLAPP suits where Superintendent of Education JOHN WHITE sued private citizen James Finney over Finney’s request for public records.
That followed a similar lawsuit filed by 4th Judicial District JUDGES against the Ouachita Citizen over the newspaper’s unmitigated gall in seeking public records from the court.
When the audit was issued, LaCerte’s attorney at the time called the audit’s findings “blatantly false. Both the interim secretary and the newly-appointed secretary of Veterans’ Affairs agreed with the findings and had taken corrective actions, Purpera’s news release said. The news release also noted that LaCerte’s attorney at the time called the audit’s findings “blatantly false.”
One thing Louisiana’s anti-SLAPP laws do is provide for the awarding of legal fees should a defendant prevail in one of these outrageous attempts to stifle public discourse.
Perry stands to collect something on the order of $16,000 in attorney fees. If plaintiff attorney Ronald Richard persists in pursuing this matter, he will be doing his clients a disservice because those attorney fees for Perry can only continue to climb.
LouisianaVoice also collected attorney fees in a recent SLAPP action when the presiding judge ruled in our favor. But there appears to be no shortage of plaintiffs willing to sue and unless judges start imposing sanctions, there will be no incentive for attorneys to refrain from collecting legal fees to represent them.
Morvant’s ruling, for lack of a better term, is an absurd interpretation of the First Amendment held in such high esteem by Thomas Jefferson who once said if forced to choose between a government without newspapers or newspapers without a government, “I should not hesitate a moment to prefer the latter.”
This is just the kind of ruling, if it is allowed to stand, that can send us barreling down the slippery slope to a government without newspapers—or any other independent media with courage enough to report the truth.
Somewhere in the great hereafter, Richard Nixon and Spiro Agnew are applauding Morvant’s ruling and should he learn of it, Donald Trump will no doubt be tweeting the glad tidings of great joy about the “fake news” comeuppance.
Louisiana Voice 
“Both the interim secretary and the newly-appointed secretary of Veterans’ Affairs agreed with the findings and had taken corrective actions, Purpera’s news release said.”
This sentence summarizes why the Judge is wrong and Purpera is free to publicly discuss the audit findings. The successors of the accused had responded to the audit findings by agreeing with the auditor and instituting corrective action. So it’s over. Fini. Guilty as charged.
Mr. Aswell, please don’t be silenced. We need you and your fellow investigative reporters if liberty is to survive.
All this reminds me of the prosecution of Terry & Laura King who “violated” Jindal’s rewritten ethics law by sharing the complaint with media, A federal judge ruled that part of the ethics laws unconstitutional. Tally one for the people.
Great article,Tom, and I have no doubt that, if I had a blog at the time, I’m sure I would have been SLAPPed. After all, even without a blog, I got hit with a lawsuit (Writ of Attachment) for doing exactly as I was instructed to do BOTH by my own attorney and the Inspector General’s Office when I was orally subpoenaed on the fly:
http://www.auctioneer-la.org/writ_attachment_denied.htm
That was ON TOP of a formal “hearing” for which my attorney charged $4,200 to defend me in the ultimate Kangaroo Court “hearing:”
http://www.auctioneer-la.org/problems_robert_burns_91212_payroll.htm
As C.B. Would say, “You can’t make this stuff up!
Let’s see if we have this straight:
1. Purpera recognizes that the MSM is well, being kind, a tad on the lazy side.
2. Accordingly he prepares a press release to summarize the findings knowing the MSM may not want to read his reports due to volume.
3. A state district judge thereafter apparently demonstrates the belief that:
A. It’s fine for you to publish your findings to the world via a formal report.
B. Most reports will likely be “buried” (or filed, or whatever verb the recipient agency chooses to use entailing the final resting place of the report.
C. You do something to make your findings more accessible to the public via attempts at news coverage, by God, I’ll facilitate the subject of your reports’ abilities to sue you for defamation.
Wow, what a message to send from the bench!
I would hope Purpera’s office is going to appeal this ruling and, though appeal courts typically are disinclined to overturn the denial of a peremptory exception on the premise that courts are, in general, reluctant to deny a plaintiff his “day in court,” I sure hope the First Circuit makes an exception on this occasion and overturns the denial of the PE.
If it does so, I would look for Street’s office (which gave up any right to file a PE once it filed an answer to the suit on April 3, 2017) to likely file a Motion for Summary Judgment using the ruling on Purpera’s appeal to buttress an argument that no issues of material fact are left to be resolved.
Nevertheless, this ruling is VERY disconcerting because, while appeal courts routinely overturn the granting of a PE (thus assisting a plaintiff to have his “day in court”), they are understandably apprehensive about overturning a judge’s ruling that says a plaintiff is entitled to have his “day in court” and thereby, by way of their overturning of that ruling, effectively deny the plaintiff that right.
Why am I not surprised? I have been waiting for the warning and the ugly ducking has reared its head.
The Chief of Police for the Town of Welsh is involved in filing a “Motion to Recuse” because he does not think he can get a fair shake before the District Judge of Jeff Davis Parish—a judge in which he or his officers have to testify routinely in the presence of on criminal cases. WHAT THE HELL WAS HE THINKING?
Louisiana’s Anti-SLAPP law needs to change to double or three times attorney fees. It appears the current law isn’t doing enough to deter SLAPP lawsuits, especially when financed by government entities.
Even under “Judge Judy” law, Purpera’s statements would be considered an “opinion”, as such, covered under the right to Free Speech. Purpera not only has the right, but the responsibility to publicly present an assessment based upon the evidence developed from any/all investigations conducted by the Legislative Auditors Department.
Judge Morvant obviously is not a fan of Judge Sheindlin and must have been sleeping during Con-law class. He, Morvant, is part of a movement aimed at reinventing the legal wheel on so many subjects. Trump, from his “entrapment” of Herschel Walker to play for the New Jersey Generals in 1983 to the present, has made it his goal to reinvent the wheel, when actually, his efforts result more in the wheel rolling backwards.