First UPEPA Order Issued In Project Veritas Case

Project Veritas is a non-profit organization that has been criticized at times as a shady or righteous group for producing extremely deceitful right-wing documentaries and other videos. One of their works included a video report titled “Ilhan Omar Connected Cash-for-Ballots Voter Fraud Scheme is corrupting Elections” (referred to in the following as “Video Report”). This report sought to expose an individual who was allegedly involved in the harvesting of ballots and other violations of Minnesota’s electoral laws.

This Video Report was quickly debunked by a Blog post on the site of The Election Integrity Partnership (“EIP”). The EIP aims to expose the facts about voter fraud or at least the absence of it, and generally debunk the notion that it is propagandist for the political cause. This EIP is a joint venture made up of two employees of Stanford University (SU) and the (ICPUW) Center for an Informed Public of the University of Washington. Its post on its website has questioned Project Veritas’ integrity and its sources, warning that ” it’s to be expected that more deceitful videos like this will be promoted similarly within the “coming days.”

The day Project Veritas published its Video Report on the same day, the New York Times NYT published an article about the tax and business history. Project Veritas claimed that the Times article essentially re-invented its Video Report. The Times and the EIP conspired to discredit its Video Report by way of an additional Times article that also challenged both the Video Report and Project Veritas in general.

Project Veritas charged the New York Times and two of its authors for defamation in the following days. The lawsuit was able to prevail over the Times anti-SLAPP motion. The suit is active as of the time of this writing.

A year after it had filed suit for defamation against the New York Times, Project Veritas filed a second libel complaint in this case, this time in the name of Stanford and the (UW) University of Washington in the U.S. District Court for the Western District of Washington. Stanford and UW made a specific request to strike under the Washington’s Uniform Public Express Protection Act (“UPEPA”) in addition to the usual rule 12(b)(6) motion for dismissal. The result was the ruling that is the topic of this article and will be reviewed in the coming days.

Project Veritas first wrangle was that the Washington UPEPA should not appeal to federal court proceedings. However, this was not the case. U.S. District Court quickly rejected this by noting that the U.S. Ninth Circuit Court of Appeals had previously ruled that Anti-SLAPP laws, like the UPEPA applicable in federal diversity cases within that circuit (although specific other courses of the federal court don’t allow Anti-SLAPP Motions).

In opposition to the case of the University of Washington, Project Veritas asserted Washington UPEPA did not cover it did not protect them and would not apply in the sense that the UPEPA does not protect “a government unit or an agent or employee of a government unit that is acting or purporting to perform in the capacity of an official.” In its defense, UW attempted to argue that public policy should move toward including governmental entities in the UPEPA protections against harassment lawsuits. However, the court didn’t believe in this, instead of ruling in the sense that “the statute is exactly what the statute states” and led that UW did not enjoy the protections of UPEPA (although obviously, UW could assert the defenses it has in its motion for dismissal).

In the next step, the court initially looked at Project Veritas’ claim for defamation, which requires evidence of all four elements, including a false statement and publishing of the statements, fault, and damages. The truth is, naturally, an absolute defense to any defamation lawsuit. A message does not have not to be 100% accurate so long as the essence that it is correct. In the same way, an opinion (however wrongheaded) is not a cause of action as defamation unless it contains false facts. In this case, the court control that the blog post of EIP was of the nature of an opinion and that it did not make incorrect facts. The New York Times’ publication of EIP’s comments was not actionable either.

The conclusion is Stanford’s UPEPA motion was sustained while the request of the Washington University for dismissal could also be granted. Project Veritas’ case was dismissed because it was not granted leave to amend. Probably this case will be sent through the Ninth Circuit for review.

Analysis

I lately wrote about the Washington UPEPA in my post-UPEPA’s Commercial Speech Exception Examined for the first time in Boshears (April 29th, 2022). Although Boshears was the first court opinion to look into the UPEPA and its commercial speech exception, the present Project Veritas case is the first time an idea has issued an order directly following the UPEPA. In this case, it is for Stanford University.

In any case, the matter is not particularly noteworthy from the perspective of the law on defamation since the issues raised here have been addressed on many other points throughout the years.

It is fascinating that the”governmental unit” or “governmental unit” exception to the scope of UPEPA wasn’t extended to include Washington State University. University of Washington. This is because the court is correct that “the statute states what it says in the statute,” but as a member of the UPEPA committee that drafted the statute I am able to tell you that this scenario was not a part of the drafting process for the exception. The purpose of the exception to accomplish was to stop an entity that is a government entity from utilizing the unique motion of the UPEPA when the government entity is a plaintiff in a lawsuit that results from a statement made by the governmental entity to fulfill its official duties (rightly or not). The exemption was not intended to apply to cases like this one, in which statements that are purely journalistic by someone who is merely supported by a governmental entity and are subject to an defamation suit. But it is true that the “statute declares what the statute states,” and a fix of this problem (if you are even interested) is required to be approved by state legislatures, or in the future revision of UPEPA.

No one, not even the committee responsible for drafting it, ever claimed that UPEPA was flawless or could be able to anticipate the many problems that could arise following the enactment. This could be an illustration of that; however, it’s also an excellent example of how law changes such that situations occur, and statutes can be amended or repealed as a result of the problem.

Another aspect that is brought up during this trial is an application of UPEPA (and the other anti-SLAPP legislation) in federal courts. According to the court in the case, it is the case that Ninth Circuit allows UPEPA motions in diversity proceedings arising from states that have such laws, however other circuits have rejected them.

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Robert Scoble
Robert is the assistant managing editor for HC News, overseeing coverage of markets, companies, strategy and business leaders. Originally from Boston, Scoble began his journalism career in 1997 & now resides outside New York.

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