By Amanda Bronstad, From The National Law Journal

A Los Angeles prosecutor has won an appeal in a case brought over cutting remarks he wrote on his blog and on Twitter about a conservative political activist.

The ruling in the case brought by Nadia Naffe, once a protégé of conservative provocateurs James O’Keefe and the late Andrew Brietbart, was the first appellate decision to address the rights of bloggers who are public employees, according to an attorney for the prosecutor, Los Angeles County Deputy District Attorney Patrick Frey.

Naffe sued Frey over statements he posted on his blog, Patterico’s Pontifications, and on Twitter at @Patterico.

The U.S. Court of Appeals for the Ninth Circuit, in its ruling on Monday, affirmed dismissal of her case after concluding that Frey’s statements had been personal and unrelated to his job as a prosecutor. The panel remanded the case, however, after finding that U.S. District Judge George Wu of the Central District of California used an incorrect standard in determining that Naffe’s state law claims, including defamation and invasion of privacy, should be dismissed on jurisdictional ground because they weren’t worth more than $75,000.

The case attracted the attention of the Digital Media Law Project, part of Harvard University’s Berkman Center for Internet & Society, which hired University of California at Los Angeles School of Law professor Eugene Volokh to submit an amicus brief in support of Frey. The group supports the rights of online journalists and others who use digital media.

Frey’s attorney, Ronald Coleman, an expert in Internet law, said the ruling was unprecedented.

“It obviously enhances or confirms the existing, well-established First Amendment right of public employees to have and to express opinions on matters even of general interest and even on matters that have some tangential relation to the work that they do,” said Coleman, a partner at Archer & Greiner in Hackensack, New Jersey.

According to the opinion, both Naffe and Frey were friends of O’Keefe. But in 2011, Naffe publicly accused O’Keefe of drugging her and attempting to sexually assault her in a barn in New Jersey. That put her and Frey, who ridiculed her accusations on Twitter and on his blog, at odds. According to the opinion, he called Naffe “a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd.”

Naffe’s attorney, Eugene Iredale of San Diego’s Iredale and Yoo, said his client hadn’t yet decided whether to petition the Ninth Circuit to rehear the case.

“We felt that his conduct was very disingenuous in that he explicitly denies or renounces any reliance on his role as a prosecutor and then, time and time again, in his comments to Ms. Naffe or in his blog analysis, he adverts to his position as a prosecutor,” he said of Frey.

In the posts, Frey accused Naffe of lying about the barn incident.

He also posted a deposition transcript, taken in a racial discrimination lawsuit Naffe had filed against her former employer, the Republican Party of Florida, that included her Social Security number.

Her appeal in the case against Frey focused mainly on a statement he posted on Twitter implying that Naffe, who was threatening to make public O’Keefe’s emails detailing a plot in 2010 to illegally wiretap the Los Angeles office of U.S. Rep. Maxine Waters, D-California, might have broken the law: “My first task is learning what criminal statutes, if any, you have admitted violating.”

Naffe sued in 2012, accusing Frey of using his position as a prosecutor to threaten her and violate her First Amendment right to free speech.

The panel found that Frey had not acted under the “color of state law” when he posted the statement “because he did so for purely personal reasons, and the communications were unrelated to his work as a county prosecutor.” The panel noted that Frey had disclaimers on his blog and on Twitter that he wasn’t speaking on behalf of the district attorney’s office.

“Indeed, if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled,” wrote Justice Richard Tallman.

IMAGES:

Screen capture of John Patrick Frey’s Twitter page.

Nadia Naffe

For more on this story go to: http://www.nationallawjournal.com/id=1202729643188/Prosecutor-Wins-Appeal-Over-His-Tweets-Against-Activist#ixzz3dKrP8c1M