9th Weighs Damage Done by Prosecutor’s Blog

PASADENA, Calif. (CN) - A woman asked the 9th Circuit Wednesday to revive claims against a criminal prosecutor she says retaliated against her for accusing conservative activist James O'Keefe of sexual assault.

Nadia Naffe sued Deputy District Attorney John Frey in a 2012 federal civil complaint, alleging that the prosecutor had used his blog "Patterico's Pontifications" to discredit claims that O'Keefe had drugged and sexually assaulted Naffe at a New Jersey barn in 2011.

Her amended lawsuit against Frey and Los Angeles County sought general, special and exemplary damages for violation of the First Amendment, defamation, intentional infliction of emotional distress and other counts.

Naffe filed a criminal complaint for harassment against O'Keefe that was later dismissed. In a separate dispute, the conservative activist and filmmaker won an injunction against Naffe when she gained access to seven years of the activist's emails after he logged into an email account using her phone.

O'Keefe, who became a fixture of cable news after he shot undercover videos in the offices of the nonprofit ACORN, was not a party to her complaint against Frey.

Naffe said that she had never met Frey, though they both knew O'Keefe and the late conservative publisher and commentator, Andrew Breitbart.

Prior to her dispute with O'Keefe, Naffe said she aided the activist's efforts to wiretap the offices of Los Angeles Democratic Congresswoman Maxine Waters.

After Naffe went public with allegations related to the alleged assault and wiretapping, Frey used his blog and Twitter account to harass and bully her, she claimed, and publicly disclosed her Social Security number by publishing a deposition transcript.

According to court papers filed by Frey's attorneys, the prosecutor only used his personal blog to question the "logic and consistency" of Naffe's allegations.

But in court filings, Naffe claimed Frey had publicly questioned how Naffe could remember what had happened if she was drugged, and wondered why she did not call a cab to escape from Frey during the alleged incident at the barn.

In April 2013, U.S. District Judge George Wu dismissed Naffe's complaint, finding her constitutional claims "largely conclusory" and ruling that she did not demonstrate that Frey was acting as an official when he made the statements on his blog and on social media.

The judge also ruled that she did not allege facts to show that she suffered damages of more than $75,000 - the jurisdictional threshold for the Federal Court to hear the remainder of her claims.

At a Wednesday morning hearing at the Richard H. Chambers Appeals Court, a 9th Circuit panel was less interested in Twitter and blogs than in whether Naffe had made a good-faith showing to meet that threshold.

Naffe's attorney Eugene Iredale said his client had, noting that she had suffered physical ailments, emotional distress, migraines and "developed a bleeding ulcer."

In addition, Naffe had alleged that she feared for her personal safety after Frey disclosed her location at Harvard, where she was a student. She also claimed that she has suffered financially because her identity was stolen after Frey published her personal information.

Judge Richard Tallman asked why Naffe had not supported her claims with receipts or bills.

"Where's the evidence of visits to the doctor in order to address these medical concerns?" Tallman asked.

As a matter of first impression, Iredale said he did not think supporting evidence was required.

Judge Jacqueline Nguyen seemed receptive to Iredale's argument. She asked why Naffe was required to specify an amount of damages based on doctors' visits or medical bills.

"So long as there are factual specifics so that we can tell damages may arise, I suspect that's probably enough," Nguyen said.

Frey's lawyer Ronald Coleman disagreed, urging the court not to accept Naffe's claims at face value.

"I haven't the slightest inkling, and I don't know that any district judge does, of what damages flow from having a bleeding ulcer," said Coleman, an attorney with New York firm Archer & Greiner. "It may be $75,000. It may be a pack of Zantac."

After the hearing, Coleman said Judge Wu had given Naffe "every opportunity" to submit facts to support her case.

"If you've got receipts and you're in danger of having your case dismissed, why don't you give them to us? And if you don't have them, that tells us something," Coleman said outside the courthouse.

Paul Beach of the Glendale, California firm Lawrence Beach Allen & Choi appeared for Los Angeles County.

Judge Wallace Tashima joined Tallman and Nguyen on the panel.

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