Last week, a three-judge panel of the Pennsylvania Superior Court – in an opinion drafted by former Pennsylvania Supreme Court Justice Correal Stevens – affirmed the dismissal of a lawsuit filed by former right-wing political candidate Clarice Schillinger and the so-called “Keeping Kids in School” Political Action Committee that she organized. Schillinger’s lawsuit targeted Pennsylvania Spotlight, “an accountability and investigative organization” with a focus on “holding elected officials accountable and exposing billionaire funded anti-union efforts” in Pennsylvania. The lawsuit, which also named Pa Spotlight’s executive director Eric Russo as a defendant, was filed in the Montgomery County Court of Common Pleas.
Schillinger’s lawsuit alleged that PA Spotlight defamed her and her PAC in an article published on June 3, 2021, titled “Former Congressman Ryan Costello and Paul Martino Biggest Donors to PAC Supporting QAnon School Board Candidates.” Notably, the article no longer appears on PA Spotlight’s website, but was reprinted verbatim in the Superior Court’s Opinion.
Schillinger’s defamation suit was among the rash of civil lawsuits launched by far-right activists in the wake of the January 6, 2021, insurrection and riot at the U.S. Capitol. These lawsuits, including ones initiated by Schillinger and prominent area millionaire Republican Samuel James (Jim) Worthington, took aim against both ordinary citizens and political leaders who seemingly had done little more than voice their opinions on matters very much in the public interest.
Although Schillinger’s suit was filed last, it was the first one dismissed on the merits. Unlike Worthington’s lawsuits – which were filed in Bucks County, Schillinger’s lawsuit was filed in Montgomery County. The trial court in Montgomery County dismissed Schillinger’s claims on August 1, 2022, on preliminary objections filed by PA Spotlight’s attorneys. Preliminary objections are a procedural vehicle permitting a trial court to evaluate the legal sufficiency of pending claims. More importantly, preliminary objections grant the trial judge the opportunity to dismiss a lawsuit soon after its commencement – before the expensive discovery phase of litigation. Given the fundamental free speech rights at issue in every defamation lawsuit, sustaining preliminary objections is a way to prevent defamation plaintiffs from using the threat of prolonged, expensive litigation to extract unwarranted concessions in the form of retractions or apologies from the publishers of these articles. Very few among us can afford to stand on principle when doing so means incurring hundreds of thousands of dollars in attorneys’ fees during the pendency of the average lawsuit.
For her part, Schillinger alleged that Pa Spotlight defamed her in three ways:
(1) by characterizing KKIS as a “dark money organization”;
(2) by using the word “supposedly” to throw shade at Schillinger’s origin story as a “mother concerned for her children’s educational development and emotional wellbeing; and
(3) by claiming that KKIS had “ulterior motives” and is among “Pennsylvania’s list of front groups masking the work of billionaire donors and extremist politicians” “working to privatize [public] education.”
After “careful review”, the Superior Court thoroughly dismantled each and every one of Schillinger’s claims. Central to the Court’s conclusion was the finding that the statements in PA Spotlight’s article were incapable of defamatory meaning because they constitute opinions protected by the First Amendment. The Court recognized that publishers are not necessarily immune from a defamation suit simply by framing their statements as opinion. If a publisher states facts supporting the opinion that are incorrect or incomplete, the statement of opinion can still imply a false assertion of fact for which the speaker can become liable.
By way of example drawn from precedent, in Myers v. Certified Guarantee Co., LLC, restorers of comic books sued appraisers for downgrading the work performed by the restorers. The crux of the allegedly defamatory statements was a claim that the restorers were “re-creating” valuable comic books and passing them off as “restored.” In weighing whether these statements were opinion based on undisclosed facts, the Superior Court found that the average reader could have understood the statements to mean that the restorers were defrauding their buyers by passing off “re-creations” as restorations. These opinions were otherwise susceptible to claims of defamation because they relied on facts that were either incorrect or incomplete, namely that the restorer’s work was “too good to be true.”
By contrast, calling someone a racist or a bigot is not actionable unless the statement also implies something more, such as “the accused has personally broken the law to act in a racist manner.” The Superior Court clarified that “calling a person a bigot or another appropriate name descriptive of his political, racial, religious, economic, or sociological philosophies gives no rise to an action for libel” because those statements are the speaker’s opinion.
Applying this precedent to the facts, the Superior Court found that each of Schillinger’s claims lacked merit. Regarding the characterization of KKIS as a “dark money organization,” the Superior Court held that PA Spotlight did not imply that KKIS failed to comply with its financial disclosure requirements. To the contrary, it used those very campaign disclosures to correctly identify KKIS’s two largest donors as a “venture capitalist and a politician.” The Court further found that the characterization of KKIS as part of a “dark money network” was defensible and based on the author’s opinion that KKIS had coordinated with the Commonwealth Foundation. Schillinger never challenged the assertion that the Commonwealth Foundation operates a dark money network.
The Court’s opinion also adopts a helpful definition of “dark money” as “financial influences that affect the outcome of elections – through uncoordinated advocacy of a candidate – without being subject to any campaign finance disclosure requirements. This is done in part through donating to organizations that are not categorized as political committees such as 501(c)(4) groups…” Finding that the term “dark money” is descriptive should take the air out of other claims of defamation stemming from use of the term.
The Court similarly dismissed Schillinger’s claims based on the remaining two statements from Pa Spotlight’s article, including by quoting liberally from the Montgomery County trial court’s opinion. Regarding the article’s use of the word “supposedly” regarding KKIS’s origin story, the Court reiterated that “the word ‘supposedly’ is no more than the verbal equivalent of a raised eyebrow… if it is a statement at all – [it] is one of opinion based on disclosed facts.” On the statement concerning KKIS’s ulterior motives as a “front group” for billionaires and extremist politicians, the Court found that it was also protected opinion, based on “multiple factual statements showing coordination between the PAC and right-wing organizations.”
Although this lawsuit was appropriately dismissed in a relatively prompt manner, and that dismissal was resoundingly affirmed on appeal approximately a year later, the question remains whether Schillinger nevertheless achieved some of her objectives. In this case, the article concerning Schillinger and KKIS is no longer published on PA Spotlight’s webpage, and we can surmise that it was withdrawn in response to Schillinger’s suit. Further, in PA Spotlight’s “investigations” section of its website, there have been no new publications since February 18, 2022.
As noted in my three-part series on SLAPP-suits for the Bucks County Beacon, defamation claims can achieve much of their objectives even when they lack merit. No doubt, Pa Spotlight was required to devote substantial time, money, and attention defending against claims that should have never been filed against it. Those resources were likely diverted away from its core mission to the defense of the litigation. It is also not hard to imagine that the threat of litigation dissuaded others from publishing articles for Pa Spotlight.