August 8, 2017

Political Speech Is Protected Under Anti-SLAPP Statute; 401 Public Safety v. Ray

Category: Indiana Law Review | Author: | Share:

In order for speech to be protected by the anti-SLAPP statute, it is not enough that it be about a subject protected by that statute. It must also be made without malice, in good faith, and with a reasonable basis in law and fact. This case explores this second requirement.

401 is an LLC that owns a portion of what used to be the Eastgate Mall. Lifeline is an LLC that leases a portion of that property. Carroll is the managing member of both entities. Carroll supported the campaign of Hunter, an incumbent City-County Councilman, who was running against Ray.

Lifeline made political contributions to Hunter’s campaign in 2010 and 2013, when Hunter was a member of the City-County Council. 401 entered into a long-term lease with Indianapolis on a piece of property (known as the ROC) in 2011, after Hunter strongly advocated in its favor.

Indianapolis media began investigating and reporting about the physical state of the property that housed the ROC in 2013. Those reports said that the building was unfit and unsafe for people to work in. The lease was also reported as being a bad deal for the City and its taxpayers.

Ray’ campaign distributed a flyer discussing the lease for the ROC. It mentioned Lifeline’s campaign contribution, called the lease a “sweetheart deal” for a “political insider,” and mentioned the safety hazards. The flyer never mentioned 401.

Lifeline and 401 filed a defamation complaint against Ray based on the content of the flyer. Ray moved to dismiss under Indiana’s Anti-SLAPP statute, and the trial court granted that motion. Lifeline and 401 appealed.

On appeal, the Court had “little difficulty” finding that the speech was connected to a public issue. The real question was whether the statements in the flyer were made without malice, in good faith, and with a reasonable basis in law and fact.

The Court addressed 401’s claim first. The flyer never mentioned 401, and did not show 401’s building.

We cannot believe that a viewer of the Flyer would draw any connection between 401 and the content of the Flyer. In other words, we cannot conclude that the Flyer contained a single even arguably defamatory or untrue statement with respect to 401.

Therefore, it was proper to dismiss 401’s claim.

As for Lifeline, the flyer mentioned it, but the statements in it were true. Lifeline did contribute to Hunter’s campaign. The flyer’s media quotations were accurate. And its description of the “sweetheart deal” was also protected.

As noted above, it is true that Lifeline—which is managed by Carroll— donated $1,300 to Hunter’s campaign. It is also true that Hunter then strongly advocated for and “champion[ed]” the Lease between 401—also managed by Carroll—and the City. While it may be true that the implication that Lifeline “bought” Hunter’s assistance in procuring the Lease with the City goes a step farther, we do not find that step sufficient to undermine a conclusion that the Appellees acted in good faith and with a reasonable basis in fact in making these statements on the Flyer.

The statements in the flyer, therefore, were all either true or opinion. Therefore, they were protected by the anti-SLAPP statute.

Judge Mathias concurred and part and dissented in part. While he agreed that the speech at issue related to a public issue and that 401’s claim should be dismissed, he disagreed as to Lifeline’s claims.

Presumably, a candidate for public office does not enter into the fray lightly, but rather, armed with the knowledge that he or she may be attacked by a political opponent in print, television, and social media. In addition, this case demonstrates that a private company or individual who made a prior campaign contribution to a candidate or politician can be involuntarily thrown into the fray as well. In our current political climate, impugning the integrity of a private company or individual is unfortunately considered fair game.

Judge Mathias pointed to facts tending to show that Ray’s campaign did not know some relevant facts, and that his campaign manager admitted that Lifeline’s donations had no impact on Hunter’s decision to support the lease.

Lifeline did not have a lease with the City, but the flyer implies that Lifeline did have a contract with the City, and the contract was obtained by donating money to Ben Hunter’s campaign. When considered as a whole, the flyer also implies that Lifeline was responsible for the dangerous condition of the building.

He felt that there was sufficient doubt to let the case proceed.


If a candidate for public office makes statements that are true and based on published media reports, then those statements will likely be protected by Indiana’s anti-SLAPP statute.


How does Anit-SLAPP apply to statements required by law?