Small town ‘perennial candidate’ asks Ninth Circuit to let him sue for defamation

An Oregon man who unsuccessfully ran for local office four times in four years told the appeals court he lost 'public figure' status after losing the final election.PORTLAND, Ore. (CN) — A dispute over whether a repeat political candidate in a small Oregon town is considered a public figure landed before the Ninth Circuit on Tuesday, and the appeals court seemed skeptical that the four-time candidate was merely a private citizen.“Isn’t the question objectively in this community whether they would view him as someone who they had to worry about whether he was fit for office?” asked U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee.Jonathan Tallman owns a coffee shop in Boardman, a small city of just shy of 4,000 on the Columbia River in eastern Oregon. He sued Dillon Spencer, the stepbrother of one of his former employees, after Spencer made a post and comments on a community Facebook page calling Tallman a child molester and predator and saying that he had sexually assaulted multiple minors.In the lower court, U.S. District Judge Michael H. Simon, a Barack Obama appointee, granted Spencer’s motion to strike under the state’s anti-SLAPP statute, which allows defendants to seek quick dismissal of a lawsuit they believe aims only to stifle their First Amendment right to free speech.Under the state’s anti-SLAPP statute, a public figure must prove the challenged statements were made with actual malice to avoid dismissal. Rather than arguing against the malice of the statements on appeal, Tallman argued he simply wasn’t a public figure at all.“At the time that the statements were made, his campaign had concluded, which by definition takes him out of the context of a candidate,” argued Joshua Escovedo, an attorney representing Tallman.Tallman ran unsuccessfully for mayor of Boardman in 2020. The next year, he ran for a seat on the Port of Morrow Board of Commissioners, then for a seat on the Boardman City Council the following year, and he ran again for a commissioner seat in 2023. Spencer made the Facebook post three months after Tallman lost the commissioner seat race in 2023.Tallman argued that he may have been considered a limited public figure while actively running for office but lost that status after the end of the last election. But the Ninth Circuit pushed back, noting Tallman had done nothing to indicate he intended to stop his pattern of running for office every year.“He’s not just a candidate — he’s a candidate for four separate offices in four consecutive years, that’s more than just a candidate,” remarked U.S. District Judge Robert Lasnik, a Bill Clinton appointee from the Western District of Washington sitting on the panel by designation. “Everyone was expecting him, ‘What’s the next position he’s gonna run for?’”Tallman argued he had no intent to run after losing the election in 2023.“Again, though, how would anyone in the community have known that three months after the fourth time that he ran?” Friedland asked. “Do you think that allegations of sexual misconduct with employees are not relevant to whether someone would be a good public official if they won an election?”Tallman argued there is no case law that makes him a public figure forever.“At the time, Mr. Tallman was no longer a candidate,” Escovedo argued. “ Under the procedural posture of the anti-SLAPP motion, the court was required to draw all facts and reasonable inferences in his favor.”“Yeah, reasonable inferences,” Lasnik said. “The inference you’re asking us to draw is not reasonable.”Spencer argued Tallman had the opportunity to declare he had no intention to run again but instead only declared he had not run again, and that the lower court was correct to consider him a recent perennial candidate.Clifford Davidson, an attorney representing Spencer, argued no one would dispute that community discussions about the character of local candidates are protected.“The rule that Mr. Tallman seems to be urging is that that discussion has to cease as soon as the candidacy ends,” Davidson said. “There’s just no support in the case law for that.”In addition to his candidacy, Tallman asserted himself in the public eye by speaking to national media as a supporter of the Greater Idaho movement — a secession effort to have eastern Oregon counties join neighboring Idaho. He also coached youth soccer and pursued an ethics complaint against local government officials — all of which Spencer argued are examples of Tallman being a well-known and active member of the community.The Ninth Circuit panel, which also included U.S. Circuit Judge Ana de Alba, a Joe Biden appointee, did not indicate when it would rule.Categories / Appeals, RegionalSubscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads