Prosecutor Cleared on Blogging About Activist

PASADENA (CN) - A conservative political activist does not have a federal case against the Los Angeles county prosecutor who called her an illiterate liar on his blog, the Ninth Circuit ruled Monday.

Nadia Naffe says the sordid dispute stems from having helped fellow activist James O'Keefe plant a bug in the office of U.S. Rep. Maxine Waters, D-Los Angeles, and the OneUnited offices where the congresswoman's husband worked.

O'Keefe was becoming something of a household name in conservative circles at the time after releasing footage of his purported undercover investigation into ACORN, short for the Association of Community Organizations for Reform Now.

Naffe said her relationship with O'Keefe soured in late 2011 when the man allegedly drugged her in an attempt to sexually assault her in a renovated New Jersey barn.

Shortly after Naffe filed a criminal harassment complaint against O'Keefe, she allegedly faced backlash from the late conservative commentator Andrew Breitbart and from Deputy District Attorney John Patrick Frey.

In a 2012 federal complaint , Naffe said O'Keefe had been Frey's former law school intern, and that Frey took to his right-wing blog, Patterico's Pontifications, to silence her. Naffe's harassment complaint against Frey was ultimately dismissed.

Naffe meanwhile accused Frey of defaming her in his official capacity as a prosecutor, but a federal judge found that "Frey's practice of simply (relatively frequently) mentioning the fact that he is a deputy district attorney or prosecutor ... does not transform everything he says on his blog or on Twitter into state action."

One month after hearing Naffe's appeal , a three-judge panel with the Ninth Circuit affirmed dismissal of the federal claims Monday.

Frey made his statements about Naffe - such as calling her "a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd" - for "purely personal reasons" and not in his capacity as a deputy district attorney, Judge Richard Tallman wrote for the court.

An individual acts under color of state law when he exercises power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," which Tallman said did not apply to the case at issue.

He said that Naffe's allegations do not indicate that Frey harmed Naffe while on duty.

"Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events," the opinion states. "While county prosecutors are sometimes authorized to speak on behalf of their employers, Naffe pleads no facts to support her allegation that the county authorized or encouraged Frey's social and political commentary."

Since Frey likewise did not use his position to investigate Naffe, his comments "are not sufficiently related to his work as a county prosecutor to constitute state action," Tallman wrote. The ruling notes that Naffe never accused Frey of using his authority to contact law enforcement, open an investigation file or interview witnesses about Naffe's involvement with O'Keefe.

Naffe's claims that Frey acted under color of state law ring hollow against the prosecutor's frequent reminders to readers and followers "that, although he worked for Los Angeles County, he blogged and tweeted only in his personal capacity," Tallman wrote.

Both Frey's blog and his Twitter account had prominent disclaimers saying the same, according to the ruling.

"And although Frey drew on his experiences as a Deputy District Attorney to inform his blog posts and tweets, that alone does not transform his private speech into public action," Tallman said.

Lastly, the "mere fact" that Naffe knew Frey was a prosecutor does not mean he abused his government position to violate her rights, the court found.

The court did, however, revive Naffe's six state-law claims, over which the lower court had declined to exercise supplemental jurisdiction.

Neither side could be reached for comment on Monday.

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