OKLAHOMA CITY — A Norman mayoral candidate and Trump supporter who flew to Washington, D.C., to participate in the Jan. 6, 2021, mass protest at the U.S. Capitol has lost her lawsuit against two townspeople she sued for libel over their social media posts.
Cleveland County District Judge Jeff Virgin dismissed Nicole Kish’s complaint on March 29, 2021, pursuant to the Oklahoma Citizens Participation Act, based on his finding that the online statements of Christian Sanchez and Kathryn Taylor were “either constitutionally privileged statements of pure opinion or subject to the common law fair comment privilege.”
Oklahoma’s Citizens Participation Act addresses slander and libel. “The purpose of the [Act] is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
The Oklahoma Court of Civil Appeals on Jan. 18 upheld Virgin’s decision that Taylor’s and Sanchez’s commentary about Kish constituted permissible civil discourse.
Kish alleged that Taylor and Sanchez made false statements about her in Facebook posts that were viewed by third parties and which exposed her to “public hatred, contempt, ridicule or disgrace.”
Kish, a Norman optometrist who placed fourth in a field of five candidates during Norman’s mayoral election in February 2022, claimed she received death threats as a result of the posts, which also caused her to lose clients and business income.
Kish alleged that damages from the episode cost her $95,083, including $76,123 from lost clients, expenses incurred to hire an off-duty law enforcement officer to protect her business and her attorney fees.
Sanchez and Taylor, who identified themselves as lifelong residents of Norman, asserted that the Citizens Participation Act “protected their right to free speech on matters of public concern.” They argued that their posts were “opinionative in nature” and were protected by the common law privilege of fair comment.
They told the courts that, as an exercise of free speech, they made public posts from their personal Facebook accounts that raised “concerns about a local businesswoman” who, along with “local political figure” Rarchar Tortorello, attended public rallies at the Oklahoma State Capitol and in Washington, D.C., in support of former President Donald Trump.
Tortorello is Norman’s Ward 5 city councilman who is seeking re-election next month. He also was referred to at a court hearing as Kish’s “significant other,” a “status which Kish did not dispute,” the appellate judges noted.
One of the photographs Kish referred to in her lawsuit petition was posted on or about Jan. 6, 2021, as an update to Tortorello’s announcement that “Nicole Kish and I are D.C. bound to support President Donald J. Trump.” In that photo, the two are seated on an airplane and Kish is not wearing a mask.
“At that time, federal law required individuals to wear a protective mask on airplanes and other forms of public transportation … to protect against transmission of the highly contagious Covid-19 virus,” the Court of Civil Appeals pointed out.
Taylor wrote on Facebook on Jan. 8, 2021: “Optometrist Nicole Kish is pictured here without a mask… I called her office and she will be seeing patients next week. If you have an appointment with her in the next two weeks, you might consider canceling or rescheduling.”
One respondent replied, “[Kish] is on a plane and not wearing a mask, so clearly
everyone around her should be worried about getting [C]ovid… [S]he’s certainly not following scientific or medical guidelines to keep herself or anyone else safe.”
Taylor directed a question to Kish: “Will you isolate when you get back to Oklahoma or should your patients be worried about getting Covid?”
Sanchez posted on Jan. 7, 2021, a photo that Tortorello previously posted of himself and Kish on the flight to Washington, D.C., and wrote, “Next on the list is ward 5 for city council Rarchar Tortorello and his fellow traitor Nicole [K]ish a local optometrist. #stop the steal they rant! Fellow [N]orman residence [sic] I urge you to spread the word of anyone you know that went to this attack! They must be prosecuted and exposed. They are a threat to you and the community.”
Statements were ‘false, malicious,’ plaintiff alleges
Kish claimed that Sanchez’s and Taylor’s “false and malicious statements” about the spread of disease and criminal activity were per se defamation and thus not entitled to the protection of the Citizens Participation Act.
Kish maintained she was a private figure and complained that Taylor as much as said “that I had a communicable disease,” and Sanchez inferred “that I have committed criminal acts.”
“We have reviewed the content and context of Defendants’ online posts,” the appellate court related. “We first note that neither Taylor’s nor Sanchez’s posts include the actual statements Kish attributed to them.”
Taylor, for example, “expressed her concern for Norman citizens who might come in close contact with Kish, including her patients, if Kish did not isolate in compliance with CDC guidelines” after her return. Taylor’s posts “did not state that Kish had contracted Covid-19 or any other ‘communicable disease’,” the Court of Civil Appeals observed.
In his district court affidavit, Sanchez “stated his belief that ‘#StopTheSteal’ supporters were conspiracy theorists peddling false claims to devalue the presidential election and deny the peaceful transfer of power.”
Sanchez’s online post “did not state that Kish committed any specific criminal act,” the judges noted. His use of the term “traitor” in his online post was “an expression of opinion as to the behaviors of both Tortorello and Kish, not a factual statement that Kish had committed the federal crimes identified in” her legal brief to the court.
Statements appearing “in the context of swirling political controversy” are the type which “the reader should perceive as functionally more ‘opinion’ than ‘fact’,” the appellate court declared. “Such statement are not actionable; they fall into the category the U.S. Supreme Court calls ‘rhetorical hyperbole’.”
The Citizens Participation Act “shall be construed liberally to effectuate its purpose and intent fully,” state law decrees.
Virgin said last year he would review the request of Taylor and Sanchez to compel Kish to pay their attorney fees and court costs after the appeals court issued its ruling in the case.