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Oregon Prison Guard's News Broadcast Tort Claims Dismissed

The Oregon Court of Appeals ordered a lower court to dismiss a prison guard's tort claims against a television broadcast company.

Around 10:00 p.m., on January 10, 2010, someone fired gunshots in a Salem, Oregon neighborhood. Some of the bullets struck the home of Patrick and Sarah Mullen.

Patrick Mullen is a sergeant with the Oregon Department of Corrections (ODOC), who works at the Oregon State Penitentiary (OSP).

Mullen claims that current and former prisoners have threatened to kill him, so he keeps his home address private and alternates his route to work. He lists the prison address on his hunting, fishing and driver's licenses.

The morning after the shooting, three television crews descended upon Mullen's neighborhood. Mullen spoke with KPTV (Fox) Reporter Mark Hanrahan, explaining that he is an ODOC sergeant and is very concerned about his and his family's safety. Mullen asked Hanrahan not to film or identify him in any news reports, because current and former prisoners would discover where he lived if he was shown on the news in front of his home.

Mullen allowed the news crew to film on his property after Hanrahan agreed not to use his image. When Mullen noticed them filming him standing in his yard talking to a neighbor, he asked Hanrahan why he was being filmed. Hanrahan promised that the footage would not be broadcast.

That evening, KPTV aired two broadcasts of the story which did not show or identify Mullen. Early the next morning, however, the story was recut for a different reporter, and was aired in the morning's news broadcasts. Mullen appeared for 3.4 seconds.

Two of Mullen's supervisors told him that they had seen the morning newscast and were concerned for the safety of Mullen and his family. Mullen claimed that about 25 prisoners also told him they had seen him on television. One prisoner supposedly declared that the news report was detailed enough to allow him to find out where Mullen lived.

Fearing for his safety, Mullen immediately moved his family out of their residence and put the home up for sale. They feared they'd have to sell in a short sale because they couldn't afford both rent and mortgage payments.

Mullen and his wife brought suit against Hanrahan and the broadcast company in state court. They alleged a breach of contract claim and three negligent and intentional torts.

The defendants filed a special motion to strike plaintiffs' three tort claims under ORS 31.150, Oregon's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. That law required the defendants to show that the claims arose out of protected conduct, such as "conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest." ORS 31.150(2)(d). If the defendants satisfied that burden, the plaintiffs would then bear the burden of making a prima facie showing of a likelihood of prevailing on their claims to avoid dismissal.

The trial court denied the defendants' motion, finding that filming Mullen was not "protected expression under ORS 31.150" because he was not a public figure and the defendants "could have easily reported the news of the shooting without filming plaintiff." As such, the court held that the defendants did not satisfy their burden of showing that the claims arose from the protected conduct described in ORS 31.150(2). The court did not decide whether the plaintiffs showed a likelihood of prevailing on their claims.

The Oregon Court of Appeals reversed, holding that the proper construction of ORS 31.150(2)(d) reveals that the trial court erred in narrowing the question to whether the defendants were entitled to show Mullen's likeness, identity and location as part of the news broadcast.

"Narrowing the reach of the anti-SLAPP statute to claims that arise only out of conduct that is necessary to free speech rights would narrow its reach beyond what the legislature intended," the Court concluded. "Plaintiffs' claims arise from conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest. Accordingly, defendants met their burden of showing under ORS 31.150(3) that plaintiffs' claims were subject to a special motion to strike."

The Court then determined that the plaintiffs failed to show a likelihood of prevailing on each of their tort claims. Accordingly, the court reversed and ordered the trial court grant the defendants' motion. See: Mullen v. Meredith Corp., 271 Or. App. 698, 353 P.3d 598 (Or. Ct. App. 2015).

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Related legal case

Mullen v. Meredith Corp.