Divided COA rules campaign flyer was protected speech

Summary judgment in a political defamation suit has been affirmed after a divided Indiana Court of Appeals decided Wednesday that language included on a campaign flyer is considered protected speech under the Anti-SLAAP statute.

In 2010 and 2013, Lifeline Data Centers LLC made political contributions to the campaign of Ben Hunter, the incumbent in the race for Indianapolis City-County Council. Meanwhile, 401 Public Safety entered into a 25-year lease with the city of Indianapolis, which allowed 401 to lease a portion of its North Shadeland Avenue property to the city.

Alex Carroll, the managing member of both 401 and Lifeline, supported Hunter through Lifeline, and Hunter was a strong advocate of the lease. However, in 2013, media reports began to suggest the building was unfit and unsafe for people to work in. Further, in 2014, reports showed the City-County Council was investigating the lease, and Carroll admitted to receiving notices of violation from the city.

Then in 2015, David Ray entered the race for a spot on the City-County Council against Hunter, and Ray established the Committee to Elect David Ray to assist with his campaign. The committee developed a series of campaign flyers, including one flyer that contained reproductions of Lifeline’s contributions to Hunter’s campaign, references to media stories about Hunter’s involvement in the lease, and text that stated, “Ben Hunter let us down,” and referring to the building, “It’s a mess… .”

The flyer did not mention or implicitly refer to 401, but both 401 and Lifeline filed a defamation complaint against Ray and the committee based on the flyer. Ray, who eventually beat Hunter in the race, filed a defense based on the Anti-SLAAP Statute, then moved to dismiss. The Marion Superior Court summarily granted the motion to dismiss based on that statute in August 2016.

The Indiana Court of Appeals upheld that decision Wednesday, with Judge John Baker writing the court had “little difficulty concluding that the speech at issue here was made in connection with a public issue,” as is required for protection under the Anti-SLAAP statute. The flyer was mailed in the context of a political election, and it addressed issues related to taxpayer dollars and political donations, Baker said.

Further, the flyer did not make any reference to 401, so it did not contain “a single even arguably defamatory or untrue statement with respect to 401,” Baker said. And in regard to Lifeline, the judge wrote there is no dispute that the statements on the flyer were either accurate or an opinion, so the trial court properly found Ray and his committee acted without malice, in good faith and with a reasonable basis in law in fact, as is required under Indiana Code 34-7-7-1.

However, in a separate opinion, Judge Paul Mathias said he dissented on the issue of whether Ray and the committee acted in good faith and with a reasonable basis with respect to Lifeline. While Mathias agreed the speech was a matter of public concern and that summary judgment was proper with respect to 401, he also said that after reviewing the flyer, he would conclude that there was a genuine issue of material fact as to whether Ray made the statements on the flyer without actual malice and in good faith.

Thus, Mathias would reverse summary judgment as to Lifeline’s claims. The case is 401 Public Safety and Lifeline Data Centers, LLC v. David Ray and the Committee to Elect David Ray, 49A02-1609-PL-2132.