Memorandum

To: Supervising Attorney

From: Associate Attorney
Re: Waters v. Harrison Legal Memorandum
Date: February 25, 2023

Question(s) Presented

1. Under California law, are the statements made by Simon Harrison on www.justtellthetruth.com
defamatory?

2. Under California law, can Kirsten Waters maintain an action for invasion of privacy against
Harrison under either California tort law or California Constitutional Law?

Short Answer

1. It is not likely a California court would find statements made on www.justtellthetruth.com were
defamatory; although injurious the statements are likely privileged due to common-interest and
may be true thus presenting a complete defense.

2. It is not likely a California court would find Waters’ has a claim for invasion of privacy under tort
law or constitutional law because Waters’ did not have a reasonable expectation of privacy as
well as the information disclosed was public record and involved the fitness of a public officer or
candidate for public office.

Statement of Facts

Kirsten Waters, plaintiff, ran for California’s senate seats against the incumbent Senator Robert

Larson. During this campaign, Waters spoke publicly about her struggles with alcohol and prescription

abuse and her journey through recovery. As a part of the election, Waters and Larson participated in two

debates. During the final debate, Waters was asked to speak on her personal struggles and what impact, if

any, they might have on her as a United States senator. To answer, Waters stated that during the summer

of her junior year at Stanford she was responsible for driving under the influence of alcohol and

possession of an unauthorized controlled substance. Additionally, Waters said that she was ordered to

serve 30 days in Palo Alto county jail, followed by a 90 day stay at a residential treatment facility; and

that was the beginning of her “life changing process” to take her life back. Immediately following this
debate, Simon Harrison, defendant, released a blog post on his well-known website

www.justtellthetruth.com. about Waters alleging she lied during the debate and questioning her ability to

be Senator. Waters and Harrison attended college together, met as Freshman, and were friends. They

eventually went separate ways and do not have any contact at present.

Harrison’s blog proclaimed to “tell the whole truth, and nothing but the truth” with the purpose

to “expose corruption in all areas of public life.” On his blog, Harrison alleged that “Kristen Waters

intentionally lied during her final debate with Senator Larson” and that statements about her struggles

with substance abuse are “fabrications.” Harrison also alleged: that Waters was neither incarcerated nor

ordered to spend time in a treatment program; that Waters only sought residential treatment because her

parents threatened to stop paying her tuition; and that after pleading guilty Waters was only sentenced to

probation and community service. Harrison stated that these “lies show that she (Waters) is not fit for

public office.” Additionally, Harrison alleged Waters “performed poorly in her studies at Stanford” and

for that reason he “doubts she (Waters) has the ability to effectively serve in any elective capacity.”

Harrison also alleged that Waters was engaged while at Standard but called off the engagement after

having an affair. In closing, Harrison states “I don’t know how Christin was accepted to University of

California Berkeley School of Law” but “does know that her father is one of their most generous

donors… and her (Waters’) admission to Berkeley was not about merit, but about favoritism and money.”

This first blog post did not gain much attention. Five days later, and one of the closest elections in

California history Waters defeated Senator Larson by 314 votes.

The initial blog post began to garner national media attention after Harrison uploaded a copy of a

letter Waters received from her probation officer. The letter confirmed Waters’ completion of probation

and community service thus completing her sentence. Due to national media coverage over the blog

allegations, Waters fell drastically in public opinion polls and faced immense pressure from her party to

resign.

One week after Harrison uploaded the letter, Waters resigned from her position as State Senator.

In her resignation Waters admitted that some statements made in her final political debate were
inaccurate, but proclaimed accusations in Harrison’s blog were “intentionally and maliciously false.” In

response Harrison posted on his blog that Waters should bring a lawsuit against him because he “has an

airtight defense: the whole truth and nothing but the truth.” Two days later, Waters filed a complaint

against Harrison for defamation and invasion of privacy.

Legal Discussion

Defamation

Based on the relevant law, it is not likely Waters will succeed on a defamation claim because the

statements, despite being disseminated with malice, are privileged under “common-interest” theory and

possibly true which would trigger a complete defense.

To state a claim for defamation, a party must show that the statements were: “(a) a publication

that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that

causes special damage.” Taus v. Loftus, 40 Cal. 4th 683, 720 (Cal., 2007) (quoting 5 Witkin, Summary of

Cal. Law (10th ed. 2005) Torts, § 529, p. 782, (citing Civ. Code, §§ 45–46)).

California code states there are two forms of defamation: libel and slander. Brown v. Kelly

Broadcasting Co., 48 Cal. 3d 711, 723 (Cal., 1989). Libel is a false and unprivileged publication by

writing. Id. (quoting Cal Civ Code § 45). Slander is a false and unprivileged publication, orally uttered.

Id. (citing Cal Civ Code § 46). In determining the defamatory nature of written material, the fact that

some person might, with extra sensitive perception, understand such a meaning will not compel this court

to establish liability. Forsher v. Bugliosi Supreme Court, 26 Cal. 3d 792, 805 (Cal., 1980).

A. Publication

In general, each time the alleged defamatory statement is communicated to a third person who

understands its defamatory meaning as applied to the plaintiff, the statement is said to have been

“published,” although a written dissemination, as suggested by the common meaning of that term, is not

required. Shively v. Bozanich, 31 Cal. 4th 1230, 1242 (Cal. 4th, 2003). For purposes of defamation law,

the definition of "publication" is not restricted to widely disseminated materials such as magazines and
newspapers. Kelly Broadcasting Co., 48 Cal. 3d at n.6. "It is not necessary that the defamatory matter be

communicated to a large or even a substantial group of persons; it is enough that it is communicated to a

single individual other than the one defamed." Id.

B. False Statements - Fact vs. Opinion

An essential element of libel…is that the publication in question must contain a false statement of

fact. Okun v. Superior Court, 29 Cal. 3d 442, 450. (Cal., 1981). The determination of whether the

allegedly defamatory statement constitutes fact or opinion is a question of law. Id. at 451. The court will

consider the nature and content of the statement taken as a whole. Id. To determine if a statement is true

or false the California courts will assess the allegedly defamatory statement from the perspective of an

average reader, and determine if the reader would interpret the statements as defamatory. Song Fi Inc. v.

Google, Inc., 108 F. Supp. 3d 876, 886 (N.D. Cal., 2015). A statement in the form of an opinion is

actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

Okun, 29 Cal. 3d at 452.

C. Defamatory (Libel)

Cal. Civ. Code § 45a distinguishes between "libel on its face” (libel per se) and "defamatory

language not libelous on its face" (libel per quod). Song Fi Inc., 108 F. Supp. 3d at 886. The California

Supreme Court concluded that libelous utterances are not within the area of constitutionally protected

speech." Kelly Broadcasting Co., 48 Cal. 3d at 721 (quoting Roth v. United States (1957) 354 U.S. 476,

483). In determining whether a statement is libelous, the courts look to what is explicitly stated as well as

what insinuation and implication can be reasonably drawn from the communication. Forsher, 26 Cal. 3d

at 795.

Libel Per Se
A publication is libelous on its face only if there is no need to have explanatory matter

introduced. Newcombe v. Adolf Coors Co., 157 F.3d 686, 695 (9th Cir., 1998) (citing Cal Civ. Code §

45a). Meaning appears from the language itself without the necessity of explanation or the pleading of

extrinsic facts, there is libel per se. Song-Fi, 108 F. Supp. 3d at 886. The determination as to whether a
publication is libelous on its face is one of law, and is to be measured by the effect the publication would

have on the mind of the average reader. Newcombe., 157 F.3d at 695.

Libel Per Quod

If the defamatory meaning would appear only to readers who might be able to recognize it

through some knowledge of specific facts . . . not discernible from the face of the publication . . . then the

libel cannot be libel per se but will be libel per quod. Song-Fi, 108 F. Supp. 3d at 886.

D. Private Citizen vs. Public Figure

An individual who voluntarily injects himself or herself into public controversy becomes a

"public figure." Okun, 29 Cal. 3d at 451. Short of accusations of crime or personal dishonesty, the First

Amendment protects even sharp attacks on the character, motives, or moral qualifications of "a public

officer…. Okun, 29 Cal. 3d at 451. The United States Supreme Court has held that a defamatory

statement concerning a public official was protected by the First Amendment except when made with

"'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was

false or not." Fellows v. Nat'l Enquirer, 42 Cal. 3d 234, 239 (quoting New York Times Co. v. Sullivan

(1964) 376 U.S. 254).

Defenses
Anti-SLAPP Statute (Strategic Lawsuits Against Public Participation)
California's anti-SLAPP statute authorizes a "special motion to strike" any cause of action against

a person arising from any act of that person in furtherance of the person's right of petition or free speech

in connection with a public issue. Safari Club Int'l v. Rudolph, 862 F.3d 1113, 1119 (9th Cir., 2017)

(citing Cal. Civ. Proc. Code § 425.16(b)(1)). Courts evaluating anti-SLAPP motions first ask if the

defendant has shown the challenged cause of action arises from activity taken in furtherance of the

defendant's right to petition or free speech. Id. If so, the burden shifts to the plaintiff to show a reasonable

probability of prevailing on the challenged claims. Id.

Truth
Substantial truth is a defense to defamation. Karimi v. Golden Gate Sch. of Law, 361 F. Supp. 3d

956, 978 (N.D. Cal., 2019). Even if a statement contains minor inaccuracies, the statement is not
actionable "unless it would have a different effect on the mind of the reader from that which the truth

would have produced." Id.

Privilege
Under California Civil Code, defendant generally bears the initial burden of establishing that the

statement in question was made on a privileged occasion. Taus, 40 Cal. 4th at 721.

A privileged publication or broadcast is one made: (a) In the proper discharge of an official duty;
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding authorized by law; (c)
In a communication, without malice; (d) (1) By a fair and true report in, or a communication to, a
public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of
anything said in the course thereof, or (E) of a verified charge or complaint made by any person
to a public official; and (e) By a fair and true report of (1) the proceedings of a public meeting, if
the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the
publication of the matter complained of was for the public benefit. Cal. Civ. Code §47

Section 47(3) provides a privilege to communications made without malice on occasions in which the

speaker and the recipient of the communication share a common-interest. Kelly Broadcasting Co., 48 Cal.

3d at 719. The California Supreme Court has held that public interest sufficient to give rise to a privilege

under Cal. Civ. Code § 47(3) is the public's interest in public officials, candidates for public office, and

those who would be deemed public figures under current law. Kelly Broadcasting Co., 48 Cal. 3d at 734.

Damages
The law presumes that general damages follow from the publication of matter libelous per se, and

where the publication is libelous per se, and is false and unprivileged, a cause of action for actual or

compensatory damages is established. Clark v. McClurg, 215 Cal. 279, 284 (Cal., 1932).

Regardless of the common-interest privilege, a plaintiff may still recover compensatory damages

in a defamation action if they are able to prove malice by a news media defendant. Kelly Broadcasting

Co., 48 Cal. 3d at 719. The California Supreme Court has held “allegations of malice…defeated the

qualified privilege of section 47.” Kapellas v. Kofman, 1 Cal. 3d 20, 29 (Cal., 1969).

Claims for libel per quod require a plaintiff to plead that he suffered special damages. Id. Special

damages are defined as "all damages which plaintiff alleges and proves that he has suffered in respect to

his property, business, trade, profession or occupation, including such amounts of money as the plaintiff
alleges and proves he has expended as a result of the alleged libel, and no other." Newcombe, 157 F.3d

686 at 695 (citing Cal. Civ. Code § 48a).

Application to Waters v. Harrison

It is unlikely Harrison will be liable for defamation. Based on the relevant law, it is not likely

Waters will succeed because the statements are: likely to be privileged under “common-interest” theory;

likely to be interpreted as opinion or hyperbole; and are possibly true which would trigger a complete

defense.

Waters can argue that the statements regarding her educational history, and statements alleging

infidelity are defamation per se. However, the statements are likely to be held as opinion as Harrison

qualifies them with additional statements such as “ I doubt” and “I don't know… but I do know….”

Additionally, the blog claiming to “tell the whole truth, and nothing but the truth” would likely be found

to be hyperbolic. In Okun, the court found terms like “To Set the Record Straight” and the words

“mysteriously” and “amazingly” would lead a reasonable reader to interpret the statements as opinion or

rhetorical hyperbole. In this case, the court will likely find that when considered in context, statements

from Harrison’s blog would be construed as rhetorical hyperbole as they found in Okun.

Further the Court has long held that possibly defamatory statements are privileged if they are

made: without malice, and in the common-interest of the public. In Kelly Broadcasting Co., the California

Supreme Court held that public interest in public officials or candidates for public office was sufficient to

apply a complete defense to the defamation claim. In this case, Waters was running for public office when

the original blog post was made. When the blog post and statements within became nationally known

Waters’ was holding office for Senator. For these reasons, the court will likely find that the statements

within the blog, although possibly defamatory, are protected by common-interest privilege.

Lastly, the statements related to Waters’s criminal history may be true, and thus absolutely

privileged. In Karimi, the court held that true statements containing minor inaccuracies are not actionable

for defamation. In this case, it is likely the court would hold that if statements related to Waters’s criminal
history are true that would be a complete defense to her defamation claim even if some other contents of

the blog post were inaccurate.

If Harrison can prove the statements were made without malice, and were made with common-

interest of the public; or that they are true the defamation claim will likely fail.

Tortious Invasion of Privacy

Waters is not likely to be able to sustain a claim for tortious invasion of privacy. Although

disseminating information about Waters’ criminal history, and possible infidelity could qualify as public

disclosure of private facts, or false light in the public eye claim. The Court will likely bar the claims

because Waters’ is a public figure and the information was related to her fitness for office thus making it

privileged.

California Supreme Court has held that “One who intentionally intrudes, physically or otherwise,

upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the

other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Taus,

40 Cal. 4th at 724. The courts have dealt with four distinct factual settings under the heading of invasion

of privacy. Those four types of cases are: (1) intrusion upon one's physical solitude or seclusion; (2)

public disclosure of private facts; (3) false light in the public eye; and (4) appropriation. Forsher, 26 Cal.

3d at 795.

Public Disclosure of Private Facts

Three required elements of the cause of action for public disclosure of private facts are:“(1)

public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable

person and (4) which is not of legitimate public concern. Shulman v. Group W Productions, Inc., 18 Cal.

4th 200 (Cal. 4th, 1998).

The California Supreme Court has held that a public disclosure of private facts is found when a

publication has given unwanted publicity to allegedly private aspects of a person's life. Shulman, 18 Cal.

4th at 214. Lack of newsworthiness is an element of the “private facts” tort, making newsworthiness a

complete bar to common law liability. Shulman, 18 Cal. 4th at 215. Court will apply a balancing test and
examine public interest in the dissemination of news and information must be balanced against the

privacy right. Shulman, 18 Cal. 4th at 215.

False Light

The "false light in the public eye" variety is in substance equivalent to a libel claim, and should

meet the same requirements of the libel claim on all aspects of the case, including proof of malice and

fulfillment of the requirements of Cal Civ. Code § 48a. Kapellas, 1 Cal. 3d at 37. California courts have

determined that a false light claim that rests on the false nature of the publication is substantively

equivalent to a libel claim based on the same publication. Newcombe, 157 F.3d at 694. The Northern

District of California has held that when a false light claim is coupled with a defamation claim, the false

light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the

defamation cause of action. Karimi, 361 F. Supp. 3d at 977. Civ. Code, § 45a, requires that special

damages be pleaded and proved in a false light action based on statements that are not defamatory on

their face. Fellows, 42 Cal. 3d at 247.

Defenses - Privilege

California courts show a reluctance to impede the free flow of any truthful information that may

be relevant to a candidate's qualifications for office. Kapellas, 1 Cal. 3d at 37.

The California Supreme court has held that “In choosing those who are to govern them, the public
must, of course, be afforded the opportunity of learning about any facet of a candidate's life that
may relate to his fitness for office. Consequently, the press must be given ample ‘breathing space’
to disseminate all information that may cast light on a candidate's qualifications. Speech
concerning public affairs is more than self-expression; it is the essence of self-government.” Id.

Kapellas holds “that government officials and candidates for such office have almost always been

considered… ‘public figures’ who should be subjected to the most thorough scrutiny.” Id.

Application to Waters v. Harrison

It is not likely the court will find Waters’ can carry the burden for an invasion of privacy claim.

A California court would likely hold that the information disclosed on Harrison’s blog was public

record and involved the fitness of a public officer or candidate for public office. In Taus, the California
Supreme Court held there was an invasion of privacy because the records were not open to the public

since the plaintiff in the case was a minor and their records were sealed. In this present case, Waters'

criminal files were not sealed and were open to the public thus the Court would likely find she does not

meet the standard for an intrusion (invasion of privacy) claim. Additionally in Kapella, the court found

that information about a candidate’s children was news-worthy and relevant to the fitness for office of the

candidate. In this case, it is likely a California court would hold that statements about Waters’ substance

abuse struggles, educational history, and personal life were relevant to her fitness in public office thus

applying a complete defense to an intrusion claim.

Constitutional Invasion of Privacy

Article I, section 1 of the California Constitution guarantees certain inalienable rights. “Among

these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and

pursuing and obtaining safety, happiness, and privacy.” Lewis v. Superior Court, 3 Cal. 5th 561, 568

(Cal., 2017) (quoting Cal. Const., art. I, § 1). A two-part test has been made for determining whether the

right to privacy under Cal. Const., art. I, § 1, has been violated. Id. at 562. First, the complaining party

must meet three threshold elements. Id. The party must demonstrate (1) a legally protected privacy

interest; (2) a reasonable expectation of privacy. Id. Actionable invasions of privacy must be sufficiently

serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social

norms underlying the privacy right. Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1, 37 (Cal. 4th,

1994)

Privacy Interest

The first element of a state constitutional cause of action for invasion of privacy is the

identification of a specific, legally protected privacy interest. Id. at 35. Whatever their common

denominator, privacy interests are best assessed separately and in context. Id. The California Supreme

Court has held that “just as the right to privacy is not absolute, privacy interests do not encompass all

conceivable assertions of individual rights.” “Id. The Court legally recognizes two classes of privacy

interests: (1) interests in precluding the dissemination or misuse of sensitive and confidential information
("informational privacy"); and (2) interests in making intimate personal decisions or conducting personal

activities without observation, intrusion, or interference ("autonomy privacy"). Id.

Reasonable Expectation of Privacy

When a legally cognizable privacy interest is present, other Highlight starts here factors may

affect a person's reasonable expectation of privacy. Hill , 7 Cal. 4th at 37. A "reasonable" expectation of

privacy is an objective entitlement founded on broadly based and widely accepted community norms. Id.

(citing Rest.2d Torts, supra, § 652(D)).

Defenses
Privacy concerns are not absolute and must be balanced against other important interests. Id. at

38. Legitimate interests derive from the legally authorized and socially beneficial activities of government

and private entities. Id. Privacy right requires that privacy interests be specifically identified and carefully

compared with competing or countervailing privacy and non privacy interests in a balancing test. Id.

Confronted with a defense based on countervailing interests, the plaintiff may undertake the burden of

demonstrating the availability and use of protective measures, safeguards, and alternatives to defendant's

conduct that would minimize the intrusion on privacy interest. Id.

Application to Waters v. Harrison

It is likely a California court would find that Harrions’s blog post did not constitute an invasion of

privacy as Waters’ did not have a reasonable expectation of privacy due to her position as public officer

and the value of information released outweighs her privacy interests. .

In Hill, found a college athlete could not hold a reasonable expectation of privacy from their

oversight entity (NCAA). Additionally, the court held that the interest of

Conclusion

It is unlikely Ms. Waters will succeed under a defamation or invasion of privacy claim. Under

California Law, it is not likely a court would find statements made on www.justtellthetruth.com were

defamatory. Although injurious the statements are likely privileged due to common-interest and they may

be true thus presenting a complete defense. Applying California court law It is not likely a California
court would find Waters’ has a claim for invasion of privacy because the information disclosed was

public record and involved the fitness of a public officer or candidate for public office. Applying

California constitutional law, it is not likely a court would find Waters’ has a claim for invasion of

privacy because she did not have a reasonable expectation of privacy due to her status as public officer

and the value of information released outweighs her privacy interests.