News Organization Was Engaged In Protected Free Speech Activity When It Issued A Public Records Request For A Professor’s Post-Publication Communications

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Nov 01, 2023

Constance Iloh worked at UC Irvine’s School of Education from 2015 to 2021, first as a postdoctoral fellow and then as an assistant professor.  During her time as a UC Irvine professor, Iloh published four articles in academic journals that were unaffiliated with UC Irvine.  The journals later retracted or corrected her articles because they had concerns about possible plagiarism and inaccurate citations.

The Center for Scientific Integrity (CSI) is an organization that reports on academic retractions and accountability.  CSI wrote an article about Iloh’s retracted and corrected articles.  CSI sought to further its investigation, so it sent UC Irvine a records request under the California Public Records Act (CPRA).  CSI requested Iloh’s post-publication communications (1) between UC Irvine and Iloh regarding the articles published in the four journals, and (2) between UC Irvine or Iloh and the four journals regarding Iloh’s articles.

Iloh filed a petition against the UC Regents and asked the trial court to prevent them from disclosing her communications to CSI.  CSI filed an anti-SLAPP motion and asked the court to dismiss Iloh’s case because she was trying to prevent them from engaging in protected free speech.  Anti-SLAPP motions allow courts to quickly dismiss lawsuits that try to prevent people from exercising their First Amendment protected free speech rights.

First the court decides whether the lawsuit arises from a person’s protected right to free speech or their protected right to petition the government.  Then the court decides if the person bringing the lawsuit has facts and a legal theory that could allow them to win.  If they fail that second step in the analysis, the case is dismissed.

The Trial Court denied CSI’s anti-SLAPP motion. The Court held that Iloh’s petition to prevent UC Irvine’s disclosure of her communications did not “arise from” protected activity.  CSI’s protected activity of newsgathering may have led to or been incidental to the disclosure that Iloh was trying to prevent, but it was not the basis of Iloh’s claims.  CSI appealed that order.

The Appeals Court agreed with CSI.  The Appeals Court held that Iloh’s lawsuit arose out of CSI’s protected free speech activity, so it was subject to CSI’s anti-SLAPP motion.

First, Iloh argued that CSI could not bring an anti-SLAPP motion because CSI was not a named defendant.  Iloh was trying to stop UC Irvine’s production of records, not CSI’s request for records.  The Court of Appeals disagreed.  In this case, CSI’s ability to access the records was the focus of the lawsuit, so CSI had a direct interest and could bring the anti-SLAPP motion.

The Court of Appeals held that CSI’s public records request was a protected free speech activity.  Protected free speech includes written or oral statements made in a public forum or place open to the public, connected to an issue of public interest, including newsgathering.  The records requested by CSI concern an issue of public interest because the public has an interest in knowing how a public university handles integrity challenges.

Next, the Court of Appeals examined whether Iloh’s lawsuit arose from CSI’s protected free speech activity.  Iloh’s petition sought to prevent UC Irvine from disclosing the records to CSI.  Thus, the purpose of the lawsuit was to challenge the propriety of CSI’s public records request.  The Court of Appeals determined the action arose from protected activity.

Ultimately, the Court of Appeals remanded the case to the Trial Court to determine whether Iloh was likely to prevail on her claims.

Iloh v. Regents of University of California (2023) 94 Cal.App.5th 947 [312 Cal.Rptr.3d 674].

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