DeHart v. Tofte

720

Argued and submitted June 6, reversed and remanded July 6, 2023

Trevor DeHART,

Brian Shannon, and Dave Brown,

Plaintiffs-Respondents,

and

Renee POWELL,

Plaintiff,

v.

Debbie TOFTE,

AJ Schwanz, and Tamara Brookfield,

Defendants-Appellants,

and

Katherine BARNETT,

Defendant.

Yamhill County Circuit Court

21YAM0001CV; A177995

533 P3d 829

In this case involving claims under Oregon’s “anti-doxing” statute, ORS

30.835, defendants appeal a limited judgment denying their special motions to

strike under Oregon’s anti-SLAPP statute, ORS 31.150. Defendants assign error

to the trial court’s denial of their special motions to strike. Held: The trial court

erred in denying defendants’ special motions to strike. Defendants met their bur-

den of making a prima facie showing that plaintiffs’ claims arose out of conduct in

furtherance of the constitutional right of free speech in connection with a public

issue or an issue of public interest. Further, plaintiffs did not meet their burden

to make a prima facie case that a reasonable person in their position would suffer

“severe emotional distress” within the meaning of Oregon’s anti-doxing statute.

Reversed and remanded.

Jennifer K. Chapman, Judge.

Athul K. Acharya argued the cause for appellants. Also

on the briefs were Kelly Simon, Shenoa Payne, Rian Peck,

and ACLU Foundation of Oregon.

Paige M. Chrz argued the cause for respondents. On the

brief were Daniel E. Thenell, Emerson Lenon, and Thenell

Law Group, P.C.

Cite as 326 Or App 720 (2023) 721

Before Tookey, Presiding Judge, and Kamins, Judge, and

Hadlock, Judge pro tempore.

TOOKEY, P. J.

Reversed and remanded.

722 DeHart v. Tofte

TOOKEY, P. J.

In this case involving claims brought under Oregon’s

recently enacted “anti-doxing” statute, ORS 30.835,1 three

defendants appeal a limited judgment denying their special

motions to strike under Oregon’s anti-SLAPP statute, ORS

31.150.2

Each of the three plaintiffs in this case is an elected

public official—namely, an elected director on the Newberg

School District Board (the School Board). Each plaintiff

voted on a motion directing the superintendent of Newberg

public schools to, among other things, “remove all Black

Lives Matter (aka BLM) signs, flags, and placards, apparel,

buttons, and all other modes of display, and all instances of

the symbol known as the Pride Flag from District facilities

immediately” (the Ban).

Following the Ban, defendants—each of whom has

a child or children attending Newberg public schools, and

each of whom disagreed with the Ban—posted information

1

Doxing, sometimes spelled “doxxing,” is “shorthand for ‘dropping docu-

ments.’ ” Svana M. Calabro, From the Message Board to the Front Door: Addressing

the Offline Consequences of Race- and Gender-Based Doxxing and Swatting, 51

Suffolk U L Rev 55, 57 (2018). It has various definitions, but broadly speaking, it

is “the public release of an individual’s personal information.” Id.; see also Frank

D. LoMonte & Paola Fiku, Thinking Outside the Dox: The First Amendment and

the Right to Disclose Personal Information, 91 UMKC L Rev 1, 4-5 (2022) (“What

we now know as ‘doxing’ first emerged in the 1990s in the world of online hack-

ers, in which people operated through anonymized screen names. If a feud broke

out among hackers, or a member of a hacking group was perceived as having

violated group norms, a squealer would ‘drop docs’ on the perceived wrongdoer by

exposing the person’s true offline identity. Eventually, ‘docs’ became ‘dox,’ lost the

‘drop,’ and evolved as a verb, sometimes written with an extra ‘x’ as ‘doxxing.’ ”

(Footnotes omitted.)).

Some commentators have attempted to categorize doxing based on the intent

of the person “dropping dox.” For example, in The Doxing Dilemma: Seeking a

Remedy for the Malicious Publication of Personal Information, 85 Fordham L Rev

2451, 2457 (2017), Julia M. MacAllister recognized three categories of doxing:

“(1) punching down doxing (i.e., doxing for purely malicious purposes); (2) doxing

for political purposes; and (3) the use of doxing by members of anonymous online

communities as a tool for internal regulation (i.e., ‘unmasking’).”

The pertinent text of Oregon’s anti-doxing statute, and a discussion of its

purpose, is set forth below, 326 Or App at 725-30.

2

The acronym “SLAPP” stands for “strategic lawsuits against public partic-

ipation.” Handy v. Lane County, 360 Or 605, 612 n 4, 385 P3d 1016 (2016).

The pertinent text of Oregon’s anti-SLAPP statute, and a discussion of its

purpose, is provided below, 326 Or App at 724-25.

Cite as 326 Or App 720 (2023) 723

about plaintiffs’ employers in a private Facebook group

called “Newberg Equity in Education” (NEEd).3 After learn-

ing of defendants’ conduct, plaintiffs brought suit under

Oregon’s anti-doxing statute, which creates a cause of action

for “improper disclosure of private information,” alleging

that they suffered “severe emotional distress” as a result of

the disclosures.4 Defendants then filed special motions to

strike under Oregon’s anti-SLAPP statute, which the trial

court denied.

As explained below, this case requires us to consider

whether, under Oregon’s anti-SLAPP statute, each defen-

dant’s conduct was “in furtherance of the exercise of the * * *

constitutional right of free speech in connection with a pub-

lic issue or an issue of public interest.” It also requires us

to consider whether each defendant’s conduct would cause a

reasonable person who is serving as an elected public official

to suffer “severe emotional distress” as that term is used in

Oregon’s anti-doxing statute.

3

“Facebook” is one of “the most popular global” “social networking sites”—

i.e., “web-based social communities of users with similar interests or affiliations

who interact with one another by sharing photos or images, exchanging text

or instant messages, playing games and so on.” Asma A.I. Vranaki, Regulating

Social Networking Sites: Facebook, Online Behavioral Advertising, Data Protection

Laws and Power, 43 Rutgers Computer & Tech L J 168, 170 (2017). Among other

activities a person with a Facebook account can engage in when using Facebook

is “join[ing] groups with other users with whom they share a tie (e.g., college)

or a common interest” (e.g., equity in education). See Jason Mazzone, Facebook’s

Afterlife, 90 N C L Rev 1643, 1647 (2012) (describing various actions users of

Facebook can take when using Facebook).

Facebook groups such as NEEd can be categorized by the level of privacy they

provide. On one end of the spectrum is a “public group,” in which anyone can see

what has been posted in the group.

At the other end of the spectrum is a “secret private group.” With a “secret

private group,” only members of the group can see what has been posted.

Additionally, to join a “secret private group,” a Facebook user must receive an

invitation to join the group from a current group member, and a “secret private

group” does not show up in any searches using the Facebook search tool.

As discussed below, NEEd is a “visible private group,” which means only

members of the group can see what has been posted. However, unlike a “secret

private group,” anyone who has a Facebook account can request to join a “visible

private group.” After a request is made, an administrator of the “visible private

group” must approve the request before the person who made the request can join

the group and see the posts that have been made to the “visible private group” or

post in the “visible private group” themselves.

4

In their complaint, plaintiffs alleged that they were “harassed” by the dis-

closures, which, as described below, is defined in the anti-doxing statute to mean,

in part, that they suffered “severe emotional distress.” ORS 30.835(1)(c).

724 DeHart v. Tofte

For the reasons explained below, we conclude that

the trial court erred in denying defendants’ special motions

to strike. We conclude that each defendant’s conduct was “in

furtherance of the exercise of the * * * constitutional right of

free speech in connection with a public issue or an issue of

public interest.”

Further, in our view, accounting for the circum-

stances surrounding defendants’ disclosures of the various

plaintiffs’ employment information—including that each

plaintiff was a public official and that each plaintiff had

affirmatively and separately publicized the identity of each

of their employers—we conclude that plaintiffs did not make

a prima facie case that a reasonable person in their positions

would suffer “severe emotional distress” within the meaning

of Oregon’s anti-doxing statute, and, therefore, did not meet

their burden under Oregon’s anti-SLAPP statute to estab-

lish a prima facie case. Consequently, we reverse the limited

judgment and remand.

I. STATUTORY CONTEXT

Before describing the factual and procedural his-

tory of the instant case and setting forth our analysis, we

think it useful to describe the statutory context in which

this appeal arises.

A. Oregon’s Anti-SLAPP Statute Generally

Oregon’s anti-SLAPP statute is codified at ORS

31.150. As noted above, the acronym “SLAPP” stands for

“strategic lawsuits against public participation.” Handy

v. Lane County, 360 Or 605, 612 n 4, 385 P3d 1016 (2016).

The statute “provides a mechanism for a defendant who is

sued over certain actions taken in the public arena to have

a questionable case dismissed at an early stage.” C.I.C.S.

Employment Services v. Newport Newspapers, 291 Or App

316, 320, 420 P3d 684 (2018) (internal quotation marks

omitted). The anti-SLAPP statute allows defendants, before

incurring significant expenses, “to expeditiously move to

dismiss nonmeritorious claims that were filed in a strate-

gic effort to chill participation in public affairs.” Id.; Staten

v. Steel, 222 Or App 17, 32, 191 P3d 778 (2008), rev den,

345 Or 618 (2009) (“The purpose of the special motion to

Cite as 326 Or App 720 (2023) 725

strike procedure, as amplified in the pertinent legislative

history, is to expeditiously terminate unfounded claims that

threaten constitutional free speech rights, not to deprive lit-

igants of the benefit of a jury determination that a claim is

meritorious.” (Emphases in original.)).

There are two steps in an anti-SLAPP motion. In

the first step, a defendant making a special motion to strike

has the burden to make a prima facie showing that the

plaintiff’s claim is of the type described in ORS 31.150(2).

ORS 31.150(3). Relevant to this case is ORS 31.150(2)(d),

which allows defendants to move to strike any claim in a

civil action that arises out of “conduct in furtherance of the

exercise of * * * the constitutional right of free speech in con-

nection with a public issue or an issue of public interest.”

If the defendant meets the burden of making that prima

facie showing, then at the second step, “the burden shifts to

the plaintiff in the action to establish that there is a prob-

ability that the plaintiff will prevail on the claim by pre-

senting substantial evidence to support a prima facie case.”

ORS 31.150(3). The court’s role at that juncture is “not to

weigh the evidence but to determine whether the plaintiff

has presented substantial evidence in support of a prima

facie case on the claim.” Mohabeer v. Farmers Ins. Exchange,

318 Or App 313, 316, 508 P3d 37, rev den, 370 Or 212 (2022).

In considering special motions to strike pursuant

to ORS 31.150, we “liberally” construe the statute “in favor

of the exercise of the rights of expression” it protects. ORS

31.152(4); see also C.I.C.S. Employment Services, 291 Or App

at 320 (so stating). We note that although Oregon’s anti-

SLAPP statute was modeled after California’s anti-SLAPP

statute, the Supreme Court has observed that California

cases decided after “2001 are relevant, at most, only for their

persuasive value.” Handy, 360 Or at 623 n 5. In this opinion,

when we cite cases interpreting California’s anti-SLAPP

statute decided after 2001, we do so because we believe them

to be persuasive.

B. Oregon’s Anti-Doxing Statute Generally

In 2021, in response to “numerous concerning

incidents where individuals have been doxed,” the Oregon

Legislative Assembly enacted an “anti-doxing” bill, House Bill

726 DeHart v. Tofte

(HB) 3047 (2021), which is presently codified at ORS 30.835.

Or Laws 2021, ch 300, § 1; Testimony, Senate Committee

on Judiciary and Ballot Measure 110 Implementation, HB

3047, May 12, 2021 (statement of Kimberly McCullough,

Legislative Director, Oregon Department of Justice).

Although doxing has various definitions, a staff measure

summary provided to legislators defined it as the “disclo-

sure of an individual’s personal information for the pur-

pose of harassing or harming the individual.” Preliminary

Staff Measure Summary, Senate Committee on Judiciary

and Ballot Measure 110 Implementation, HB 3047, May 12,

2021; see State Treasurer v. Marsh & McLennan Companies,

Inc., 353 Or 1, 12-13, 292 P3d 525 (2012) (using staff mea-

sure summary to understand the legislature’s intent).

As enacted, HB 3047 creates a cause of action “for

improper disclosure of private information” if the plaintiff

establishes “by a preponderance of the evidence” that:

“(a) The defendant, with the intent to stalk, harass or

injure the plaintiff, knowingly caused personal informa-

tion to be disclosed;

“(b) The defendant knew or reasonably should have

known that the plaintiff did not consent to the disclosure;

“(c) The plaintiff is stalked, harassed or injured by the

disclosure; and

“(d) A reasonable person would be stalked, harassed or

injured by the disclosure.”

ORS 30.835(2). Additionally, ORS 30.835(1) provides the fol-

lowing definitions:

“(a) ‘Disclose’ includes, but is not limited to, transfer,

publish, distribute, exhibit, advertise and offer.

“(b) ‘Injure’ means to subject another to bodily injury

or death.

“(c) ‘Harass’ means to subject another to severe emo-

tional distress such that the individual experiences anx-

iety, fear, torment or apprehension that may or may not

result in a physical manifestation of severe emotional dis-

tress or a mental health diagnosis and is protracted rather

than merely trivial or transitory.

Cite as 326 Or App 720 (2023) 727

“(d) ‘Personal information’ means:

“(A) The plaintiff’s home address, personal electronic

mail address, personal phone number or Social Security

number;

“(B) Contact information for the plaintiff’s employer;

“(C) Contact information for a family member of the

plaintiff;

“(D) Photographs of the plaintiff’s children; or

“(E) Identification of the school that the plaintiff’s

children attend.

“(e) ‘Stalk’ means conduct constituting the crime of

stalking under ORS 163.732 or conduct that would give rise

to an action for issuance or violation of a stalking protec-

tive order under ORS 30.866.”

A plaintiff who prevails on a claim for “improper

disclosure of private information” under ORS 30.835 can

recover economic and noneconomic damages, punitive dam-

ages, injunctive relief, reasonable attorney fees, and any

other appropriate equitable relief. ORS 30.835(3).

HB 3047 was originally a product of work undertaken

by the Joint Committee on Transparent Policing and Use of

Force Reform.5 Testimony, House Committee on Judiciary,

Subcommittee on Equitable Policing, HB 3047, Mar 1, 2021

(statement of Rep Janelle Bynum). During hearings on the

bill, legislators heard about the pervasive nature of doxing

and significant harm caused to individuals who have been

doxed. By way of just a few of the many possible examples

found in the legislative history of HB 3047, a cosponsor of

the bill, Representative Janelle Bynum, testified that she

had heard from “constituents, journalists, advocates, orga-

nizers, and members of law enforcement who were negatively

impacted by doxxing,” and that doxing had become “a tool of

oppression that forced people into shells of their former selves

and even forced families to take monumental steps to pro-

tect themselves.” Testimony, House Committee on Judiciary,

5

The Joint Committee on Transparent Policing and Use of Force Reform was

created during a 2020 special session of the legislature and was authorized to

conduct business during sessions of the legislature, “any recess thereof,” and “in

the interim between sessions.” HB 4201 (2020).

728 DeHart v. Tofte

Subcommittee on Equitable Policing, HB 3047, Mar 1, 2021

(statement of Rep Janelle Bynum). Aaron Knott, the Policy

Director for the Multnomah County District Attorney’s Office,

testified that there are instances where pictures of houses

belonging to prosecutors in the Multnomah County District

Attorney’s Office had been posted online with captions such

as, “We know where your kids are, do you?” Audio Recording,

Senate Committee on Judiciary and Ballot Measure 110

Implementation, HB 3047, May 12, 2021, at 52:00 (comments

of Aaron Knott). Knott also testified that he was aware of the

doxing of defense attorneys, probation officers, Department

of Human Services caseworkers, and “political activists

across the entirety of the political spectrum.” Id. A legisla-

tor, Representative Bill Post, testified that he was doxed on

Twitter by a “national journalist” with 1.5 million followers,

and that that journalist posted information to Twitter includ-

ing Representative Post’s Social Security number, his personal

phone number, his wife’s phone number, his wife’s name, his

son’s phone number, his chief of staff’s phone number, and a pic-

ture of his house, along with a message that said, “Don’t bring

a gun to a bazooka fight.” Audio Recording, House Committee

on Judiciary, Subcommittee on Equitable Policing, HB 3047,

Mar 10, 2021, at 43:11 (comments of Rep Bill Post).6 As a result

of that doxing, Post had to change his bank accounts and

credit cards, and received unwanted phone calls. Id. And Jon

Isaacs, Vice President of Government Affairs for the Portland

Business Alliance, testified as to the “unheard of attacks on

the homes of elected officials” in Portland that had occurred

as a result of doxing, including one that put an “entire build-

ing of residents at risk.” Audio Recording, House Committee

on Judiciary, Subcommittee on Equitable Policing, HB 3047,

Mar 1, 2021, at 51:00 (comments of Jon Isaacs).

Notwithstanding the pervasive nature and signifi-

cant harm caused by doxing, the actual cause of action cre-

ated by the legislature in HB 3047 was written “very, very

narrowly,” in part to accord with the dictates of Article I,

6

Representative Post explained that the journalist claimed that Post had

actually doxed the journalist first, when Post posted a link on Facebook to a

ballot measure petition on the Secretary of State’s website that identified the

journalist as the individual behind the ballot measure petition. Audio Recording,

House Committee on Judiciary, Subcommittee on Equitable Policing, HB 3047,

Mar 10, 2021, at 44:06 (comments of Rep Bill Post).

Cite as 326 Or App 720 (2023) 729

section 8, of the Oregon Constitution.7 Audio Recording,

Senate Committee on Judiciary and Ballot Measure 110

Implementation, HB 3047, May 12, 2021, at 52:40 (com-

ments of Aaron Knott). Article I, section 8, provides:

“No law shall be passed restraining the free expression

of opinion, or restricting the right to speak, write, or print

freely on any subject whatever; but every person shall be

responsible for the abuse of this right.”

In particular, as originally introduced, HB 3047

did not contain a definition for what it meant to “harass”

or “injure” someone as those terms were used in HB 3047,

and also provided that distributing “personal information”

with the intent to “humiliate” was actionable under the pro-

posed cause of action. HB 3047, Introduced (Jan 26, 2021).

HB 3047 was amended after a representative from the Anti-

Defamation League (ADL), Lauren Krapf, raised concerns

that the introduced version of the bill could “capture conduct

that involves identifying people online where the purpose

may be to protect others, tamp down extremists, or report on

a public interest story.” Audio Recording, House Committee

on Judiciary, Subcommittee on Equitable Policing, HB

3047, Mar 1, 2021, at 44:08 (Lauren Krapf, National Policy

Counsel, ADL). As Krapf saw it, holding “someone account-

able for doxing because they have an intent to humiliate

someone is overly broad and brings about the potential for

capturing expressive conduct that ought to be protected [by]

our civil liberties,” and noted that when “it comes to online

harassment there is a fine line to walk, and it is important

we do so when enacting anti-doxing legislation.” Id.8

7

Aaron Knott explained that HB 3047 was not intended to provide a cause of

action where the defendant did not intend a “constitutionally recognized harm,”

for example, where a person “put somebody’s personal information online * * *

to expose them to political speech”—i.e., where the subject of the doxing is an

“elected official and [the person doing the doxing] think[s] they need to hear

from their constituents.” See Audio Recording, House Committee on Judiciary,

Subcommittee on Equitable Policing, HB 3047, Mar 1, 2021, at 25:05 (comments

of Aaron Knott).

8

The ADL has been described as “one of the nation’s most respected

human rights organizations.” LoMonte & Fiku, 91 UMKC L Rev at 10. Frank D.

LoMonte, Professor and Director of the Joseph L. Brechner Center for Freedom

of Information at the University of Florida notes that the ADL

“has a complicated relationship with the concept of doxing. The ADL has

called for legislation to outlaw the release of information with intent to

730 DeHart v. Tofte

As a result of Krapf’s testimony—along with sub-

sequent contributions by the ADL, the Multnomah County

District Attorney’s Office, and the Oregon Department of

Justice—HB 3047 was amended to replace the word “humil-

iate” with the word “stalk,” and to define “stalk” as conduct

“constituting the crime of stalking under ORS 163.732”

and conduct that would “give rise to an action for issu-

ance or violation of a stalking protective order under ORS

30.866.” Audio Recording, House Committee on Judiciary,

Subcommittee on Equitable Policing, HB 3047, Mar 17,

2021, at 11:11 (comments of Michael Lantz); Or Laws 2021,

ch 300, § 1. The amendments also added definitions for the

word “injure” and “harass,” such that the word “injure,” as

used in the anti-doxing statute, means to subject another

person “to bodily injury or death,” and “harass,” as used in

the anti-doxing statute, means, in pertinent part, to sub-

ject another person “to severe emotional distress.” Or Laws

2021, ch 300, § 1.

II. FACTUAL AND PROCEDURAL HISTORY

With that statutory context, we turn to the perti-

nent factual and procedural history. We take “the following

facts from the pleadings and from the supporting and oppos-

ing affidavits submitted to the trial court, ORS 31.150(4),

and state them in the light most favorable to plaintiffs.”

Mullen v. Meredith Corp., 271 Or App 698, 702, 353 P3d

598 (2015) (internal quotation marks omitted). We note that

cause harassment, while also supporting the unmasking of white suprem-

acists and other wrongdoers. In a blog post setting forth its position, the

ADL explained: ‘Unlawful doxing is different from the work that activists

and researchers—including those at ADL—are now engaging in to iden-

tify extremists and help law enforcement agencies investigate the riot-

ers who violently stormed the Capitol. These activists and researchers are

not operating with a criminal mental state. The same goes for journalists

who break important stories, people who take on powerful institutions and

interests by disclosing information (for example about the source of polit-

ical donations), and people who report abuses of power or otherwise act as

whistleblowers.’ ”

Id. (brackets omitted). Despite concerns about the breadth of the originally intro-

duced version of Oregon’s anti-doxing bill, the ADL supported enactment of the

amended version of the bill which was codified as ORS 30.835. Audio Recording,

Senate Committee on Judiciary and Ballot Measure 110 Implementation, HB

3047, May 12, 2021, at 54:30 (comments of Matthew Kahl, Vice Chair, Advisory

Board, Anti-Defamation League Pacific Northwest Region).

Cite as 326 Or App 720 (2023) 731

the facts material to our analysis in this case are largely

undisputed.

A. The NEEd Facebook Group

The NEEd Facebook group was created in the sum-

mer of 2020 after plaintiff Brown, who was a director on

the School Board, voted against Resolution 2020-04, enti-

tled “A Resolution of the Newberg School Board of Directors

Condemning Racism and Committing to Being an Anti-

Racist School District.”

In response to that vote, a friend of defendant

Schwanz started “an online discussion about next steps for

anti-racism work to take place in Newberg Public Schools.”

That discussion became the NEEd Facebook group, which

at the time of the events giving rise to plaintiffs’ lawsuit,

had around 649 members.9

NEEd’s membership consists mostly of parents

of students in Newberg public schools, but it also includes

teachers and other community members. Everyone in the

group “believes that education must be equitable, including

proactively anti-racist.” NEEd is a “visible private group”

on Facebook, which means that someone “needs to request

to join, and an administrator must approve their request,

before they can see the group’s posts or post to the group

themselves.” Administrators decided to make NEEd a pri-

vate group “so that [they] could communicate [the] group’s

purpose and the tone of mutual respect we expect from all

of our members; ask people to fill out a couple of questions

to help confirm that they understand [the] group’s purpose

and agree to engage in respectful and civil discourse; and

ensure that the group stays focused on promoting equity

in Newberg Public Schools.” Topics discussed in the NEEd

group included “upcoming School Board meetings; topics on

the Board’s agenda; how to submit comments to the Board if

members so wish; news articles relevant to [NEEd’s] discus-

sions; anti-racist learning resources; etc.”

9

Facebook was chosen to host NEEd because it “is ubiquitous, and [the

founders of the NEEd group] believed that most people who would want to par-

ticipate in the discussions would already have a Facebook account.” Additionally,

it was “free to use, which remove[d] the financial barrier to access the group,” as

long as “a person has a way to connect to the internet.”

732 DeHart v. Tofte

B. The Ban

During the 2021-2022 academic year, each plaintiff

served as a director on the School Board, an elected position,

with plaintiff Brown as Board Chair and plaintiff Shannon

as Vice-Chair. During a July 2021 School Board meeting,

Shannon moved

“that the Newberg Dundee School District Board of

Directors direct the Superintendent to remove all Black

Lives Matter (a.k.a. BLM) signs, flags, placards, and all

instances of the symbol known as the Pride flag from dis-

trict facilities immediately and direct the policy committee

to draft policy language prohibiting the display of political

signs, flags, and placards, in district facilities with the sole

exception of the American flag and the Oregon state flag.”

Shannon’s motion was tabled, but community mem-

bers opposed to the Ban attended weekly protests, and

approximately 500 people emailed the School Board to sub-

mit comments about Shannon’s motion.

The next board meeting took place on August 10,

2021. At that meeting, after comments from many members

of the Newberg community regarding Shannon’s motion

(both in support and opposed), the three board members

who are plaintiffs in this suit—Brown, Shannon, and

DeHart—voted to approve an amended version of Shannon’s

motion, and the Ban was passed.10 The Ban received both

local and national media coverage, drawing coverage from,

among other sources, Oregon Public Broadcasting and the

Washington Post.

10

The amended version of Shannon’s proposal provided:

“That the Newberg-Dundee School District Board of Directors direct the

Superintendent to remove all Black Lives Matter (aka BLM) signs, flags, and

placards, apparel, buttons, and all other modes of display, and all instances of

the symbol known as the Pride Flag from District facilities immediately, and

direct the Policy Committee to draft policy language prohibiting the display

of political signs, flags, apparel, buttons, and placards, and all other modes

of display from District facilities, with the sole exception of the American

Flag and Oregon state flag, with exemptions as it sees proper. The language

contained in this directive shall only apply to District staff and faculty while

in the performance of their official duties as District employees.”

Another director on the School Board, Powell, also voted in favor of the Ban.

Powell was originally a plaintiff in this suit but has since dropped her claim.

The other three directors on the School Board voted against the Ban.

Cite as 326 Or App 720 (2023) 733

C. Defendants and Their Conduct After the Ban

Defendants’ conduct that gave rise to this lawsuit

occurred after the Ban, and is most easily understood by

describing each defendant and their conduct individually.

1. Defendant Schwanz

Plaintiffs’ claim against defendant Schwanz arises

from information she posted to the NEEd Facebook group

regarding plaintiff Brown.

Defendant Schwanz has three children who attend

Newberg public schools. She has taken on substantial vol-

unteer roles in the Newberg School District—e.g., serving

as a representative on the district’s budget committee, serv-

ing on several hiring committees, and supporting the cam-

paigns of two school board candidates. Schwanz was also a

co-administrator of NEEd and historically was one of the

most active posters in the group.

After the Ban, a former Newberg public school stu-

dent “reshared” a “tweet”11 on the online messaging service

Twitter about alleged conduct undertaken by Brown while

Brown was working as a coach at Newberg High School—

namely, that Brown had made racist comments and also

laughed after an assistant coach used a demeaning and

offensive term in reference to students at the school. A

member of the NEEd Facebook group reposted the former

student’s tweet in the NEEd Facebook group. The infor-

mation in the tweet concerned Schwanz, because Schwanz

was aware that Brown was coaching students as the Head

Coach for the Canby High School Girls Tennis Program.

Schwanz was aware of Brown’s work as a coach at Canby

High School because Brown had made statements to local

media—namely, the Canby Herald—regarding that work,

and had also commented on that work during at least one

board meeting.

Schwanz believed that “any student who had expe-

rience with Chair Brown in his capacity as a Head Coach

11

A “tweet” is a post on the Twitter online message service. Merriam-

Webster.com Dictionary, http://merriamwebster.com/dictionary/tweet (accessed

May 12, 2023).

734 DeHart v. Tofte

should feel empowered to report their experiences (whether

good or bad) to the Canby Athletic Director.” She subse-

quently found the Canby Athletic Director’s contact infor-

mation via a Google search and, on August 15, 2021, posted

the following message on the NEEd Facebook group:

“Chair Brown is currently employed by the Canby

School District as the girls’ tennis coach.

“If you know of students who have been coached by

Chair Brown, please encourage them to share their stories/

concerns with the Canby Athletic Director:

“[Athletic Director’s name]

“Associate Principal / Athletic Director - Canby High

“[Athletic Director’s work phone number]

“[Athletic Director’s work email address]”12

With her post, Schwanz also posted two links: first,

a link to the Oregon School Activities Association webpage

for Canby High School, and second, a link to a Canby Herald

article in which Brown discussed both his coaching position

at Canby High School and his service on the School Board.

We note that, when Brown was running for his posi-

tion on the School Board, he publicly referenced his years

of coaching students and serving as security at Newberg

High School as a qualification for being elected to the School

Board.

In a declaration submitted by Schwanz in connec-

tion with her anti-SLAPP motion, Schwanz explained that

her intent when posting the athletic director’s contact infor-

mation was to “(1) give high school students access to infor-

mation they may need to report safety issues about a coach

at their public school; and (2) to help Chair Brown under-

stand the harmful effects of the policies he was promoting

as a Director of the Newberg School Board.”

12

As indicated, Schwanz’s post contained the athletic director’s name, work

phone number, and work email address. We have omitted that information in the

quote above, which seems fitting in an opinion concerning claims arising under

Oregon’s anti-doxing statute. See 326 Or App at 722 n 1 (describing “doxing” as

“the public release of an individual’s personal information”).

Cite as 326 Or App 720 (2023) 735

According to a declaration submitted by Brown,

after Schwanz’s post containing the athletic director’s con-

tact information and soliciting students who had experi-

ences with Brown to contact the athletic director, Brown

suffered “severe emotional distress”—namely, “anxiety, fear,

and apprehension”—due to Schwanz’s post. Specifically,

Brown averred that he has “trouble sleeping” and now

“wakes up to any noise” in his house, and though he used

to keep his garage door open, he does not keep his garage

door open anymore because he fears “someone entering his

garage.” Brown also averred that he “has reason to believe

[his] employer received unsolicited contacts” in response to

defendant Schwanz’s posting of the athletic director’s con-

tact information, because he has “felt a difference in the

communication with [his] boss as communication has died

down between us,” which he believes is due to “people call-

ing in.”

2. Defendant Brookfield

Plaintiffs’ claim against defendant Brookfield arises

from information she posted to the NEEd Facebook group

regarding plaintiff Shannon.

Brookfield has two children who attend Newberg

public schools. Brookfield joined NEEd in “connection with

the debate around, passage of, and fallout from” the Ban.

On August 17, 2021, another participant in NEEd

posted that, according to a website that Shannon had cre-

ated to promote his campaign for School Board, Shannon

worked at Selectron Technologies, and that participant

also posted the web address for Selectron Technologies. On

his campaign website, Shannon wrote that he worked as a

Senior Project Manager at Selectron Technologies. Shannon

also listed Selectron Technologies as his employer on his

LinkedIn page.13

13

LinkedIn is a social media site that “emphasizes professional networking.”

Brian Van Wyk, We’re Friends, Right? Client List Misappropriation and Online

Social Networking in the Workplace, 11 Vand J Ent & Tech L 743, 746 (2009).

It claims to be “the world’s largest professional network” and that it has “more

than 930 million members” worldwide. See https://about.linkedin.com/ (accessed

May 11, 2023).

736 DeHart v. Tofte

After seeing the post identifying Shannon’s employer,

Brookfield searched “Selectron Technologies” on Google and

saw the phone number for Selectron Technologies in the “knowl-

edge panel” on the top right of the Google page. Brookfield

copied the phone number from the Google search and posted

the following in the NEEd Facebook group, replying to the

message described above identifying Shannon’s employer as

Selectron Technologies:

“[phone number for Selectron Technologies], please call

them and express your concerns about his demonstrated

behavior. I’d avoid hearsay.”14

According to a declaration submitted by Brookfield,

she posted the phone number for Selectron Technologies

because she believed that Shannon “would benefit from

equal-opportunity training, and [she] hoped that his

employer would provide it,” and because she wanted Shannon

“to understand how his policies were harming marginalized

members of our community.” She also wanted to ensure

Selectron Technologies was “aware of and able to participate

in the public discussion of which they had become a part.”

According to a declaration submitted by Shannon,

as a result of Brookfield posting the phone number for

Selectron Technologies in the NEEd Facebook group, he

was “subjected to severe emotional distress,” such that he

“experienced and continue[s] to experience anxiety, fear,

and apprehension.” As a result of Brookfield’s post, Shannon

can “no longer eat out in [his] community”; he had to

“call the police because of activity outside [his] house that

[he] believe[s] is connected to the disclosure”; he has had

trouble sleeping and installed a video camera outside his

house. Additionally, he lost his employment at Selectron

Technologies, which he “believes” was a “direct result of

people contacting [Selectron Technologies] after Brookfield

disclosed their contact information.”

3. Defendant Tofte

Plaintiffs’ claim against defendant Tofte arises

from information she posted to the NEEd Facebook group

regarding plaintiff DeHart.

14

As indicated, Brookfield’s post contained the phone number for Selectron

Technologies. We have omitted the phone number in this opinion.

Cite as 326 Or App 720 (2023) 737

Tofte is employed as a humanities and drama

teacher in the Newberg School District. At the time of her

conduct that gives rise to the suit against her, she had a son

that was a student at Newberg High School. Her son was

very upset by the Ban because “his friends who identify as

part of the LGBTQ+ or BIPOC community expressed to him

that the [Ban] made them feel like they didn’t matter.” Tofte

joined NEEd in an effort to “support students like [her] son’s

friends and oppose the [Newberg] ban.” Shortly after the

Ban was passed, an individual who was a member of the

NEEd group posted a message reading:

“I have hesitated to ask this but have thought long on

it. I’d like to know where the 4 board members and their

spouses work so that I can avoid giving them my business

and letting their employer know why.

“These people have negatively impacted my job and

hurt my family. I think it’s only fair I respond in this type

of way.”

Shortly thereafter, Tofte, who had previously

learned from a different NEEd user that DeHart worked

at Lam Research, searched for Lam Research on Google

and found its publicly available “Core Values” webpage.

Although it is not clear how that other NEEd user learned

that DeHart worked at Lam Research, DeHart did publi-

cize his work for Lam Research on his LinkedIn page. Tofte,

who believed that DeHart’s vote on the Ban conflicted with

Lam’s Core Values, responded with the following message:

“Key tenants for Lam Research, the employer of Trevor

DeHart. This is their dedication to education. Read the last

section, ‘Quality of Life’ and you’ll see just in that tidbit

how DeHart’s values conflict with his employers.”

She appended to that message a link to Lam Research’s

website. She then posted the following message:

“Here are the Core Values of Lam Research:

“Achievement

“Agility

“Inclusion & diversity (WHAT? How does DeHart stand

to work for these people?!)

738 DeHart v. Tofte

“Innovation and continuous improvement

“Mutual trust & respect (AGAIN. . . WHAT? Does

DeHart know this about his employer?!)

“Open communication

“Ownership & accountability

“Teamwork. (He seriously can’t know this. And he

remains working for them. Someone should point out these

Core Values to him. He needs to know this info! They seri-

ously conflict).”

Tofte later wrote, in response to another NEEd

group member questioning the ethics of posting plaintiffs’

employment information:

“I think what people are seeing is their political values

are impacting every single employee in the Newberg School

District. I don’t want anyone to get fired, but I would like

to see them held accountable for their actions, which are

politically fueled in a role that should be one of objectivity.

I think many Newberg staff feel like [Brown, Shannon, and

DeHart are] creating a hostile work environment.”

According to a declaration submitted by DeHart, he was

“subjected to severe emotional distress” by Tofte as a result

of the above-mentioned Facebook posts by Tofte, such that

he experienced and continues to experience anxiety, fear,

and apprehension. That fear and apprehension has changed

where he goes out to eat, caused him to be conscious about

where he is in public places, resulted in restless nights on

a frequent basis for many months, caused him to keep “per-

sonal protection nearby” when he sleeps, and resulted in

anxiety “both at home and away in the form of situational

awareness.” Additionally, DeHart averred that he believes

his employer “received unsolicited contacts” in response to

Tofte’s posting.

D. The Instant Litigation

After Schwanz’s, Brookfield’s, and Tofte’s posts

on Facebook regarding Brown’s, Shannon’s, and DeHart’s

employers, respectively, plaintiffs filed suit under ORS

30.835, which, as noted, creates a cause of action for

“improper disclosure of private information.” The complaint

Cite as 326 Or App 720 (2023) 739

alleged that each defendant, with intent to “harass” plain-

tiffs (i.e., cause “severe emotional distress” to plaintiffs)

caused “personal information” (i.e., contact information for

plaintiffs’ employers) to be disclosed; that defendants “knew

or reasonably should have known that plaintiffs did not con-

sent to that disclosure”; that plaintiffs were “harassed” by

the disclosure (that is, they suffered “severe emotional dis-

tress”); and that “a reasonable person would be harassed by

the disclosure.”

After the complaint was filed, each defendant filed

a motion under Oregon’s anti-SLAPP statute, contending,

among other points, that their conduct was “in furtherance

of the exercise of the * * * constitutional right of free speech

in connection with a public issue or an issue of public inter-

est,” ORS 31.150(2)(d), and further contending that plain-

tiffs could not establish a prima facie case for “improper dis-

closure of private information” under ORS 30.835.

In a letter opinion, the trial court denied defen-

dants’ special motions to strike. With regard to defendants

Tofte and Brookfield, who, as noted, were alleged to have

posted “contact information” about plaintiffs Shannon’s

and DeHart’s employers—a phone number and a website,

respectively—the court ruled that “it is unclear from the

record why such employment or the values of those private

entities would be a matter of public interest.” The court

observed that “[t]here are many situations in which the pri-

vate employment of a public servant can be deemed a mat-

ter of public interest” but Tofte and Brookfield had failed to

“establish [a] nexus” between the information they posted

and a public interest, noting that “the record does not indi-

cate that defendants’ posts “contributed to a conversation

about whether DeHart and Brown were technically quali-

fied for their public positions; and the posts do not suggest

that DeHart and Brown’s employment influenced the con-

troversial decisions they made.” Thus, Tofte and Brookfield

had failed, in the trial court’s view, to establish a prima facie

showing that their conduct was of the type described in ORS

31.150(2)(d), e.g., 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.”

740 DeHart v. Tofte

With regard to defendant Schwanz, who posted

information concerning plaintiff Brown’s employer—namely,

the contact information for the Canby athletic director—the

trial court ruled that defendant Schwanz’s post “was look-

ing for students to share stories and experiences about hav-

ing worked with Chair Brown in that capacity” and that

that “post’s connection to public school and to public school

students clearly implicates matters of public interest” and

“involves conduct in the furtherance of protected speech”

under ORS 31.150(2)(d). Nevertheless, the trial court denied

defendant Schwanz’s special motion to strike, concluding that

Brown had established, “via substantial evidence, that he has

a prima facie case.” As the trial court saw it, plaintiff Brown

made a prima facie case that (1) “Schwanz made a post that

contained detailed contact information for plaintiff Brown’s

boss”; (2) “plaintiff Brown * * * suffered damages as a result

of that disclosure”; and (3) defendant Schwanz “researched,

identified, and then disclosed details about who Brown’s boss

was and how to reach that individual,” and a “factfinder could

reasonably conclude that defendant Schwanz knew or should

have known that plaintiff Brown did not consent to that

information being disclosed.” The trial court declined to rule

on the overall constitutionality of ORS 30.835.15

III. ANALYSIS

As noted, on appeal, defendants contend that the

trial court erred in denying their special motions to strike.

“We review for legal error a trial court’s ruling on an ORS

31.150 special motion to strike.” Mullen, 271 Or App at 704.

For the reasons explained below, we agree with defendants

that the trial court erred.

A. Anti-SLAPP Step 1: Was defendants’ conduct in fur-

therance of the exercise of the constitutional right of free

speech in connection with a public issue or issue of public

interest?

As noted above, a defendant making a special

motion to strike has the initial burden to make a prima facie

15

In the trial court’s view, the constitutionality of ORS 30.835 was not

“fully fleshed out in the record.” Further, the trial court had “questions about

whether notice and an opportunity to be heard must be provided to the Oregon

Attorney General before the constitutionality of [ORS 30.835] could be decided”

and believed “a special motion to strike is not the procedural vehicle to raise and

decide a constitutional challenge.”

Cite as 326 Or App 720 (2023) 741

showing that the plaintiff’s claim is of the type described

in ORS 31.150(2). Relevant to this case is ORS 31.150(2)(d),

which “broadly authorizes the filing of an anti-SLAPP motion

‘against any claim in a civil action that arises out of * * *

[a]ny * * * conduct in furtherance of * * * the constitutional

right of free speech in connection with a public issue or an

issue of public interest.’ ”16 Neumann v. Liles, 295 Or App 340,

344, 434 P3d 438 (2018), rev den, 365 Or 195 (2019) (quot-

ing ORS 31.150(2)(d); omissions and brackets in Neumann).

We analyze this first step of the anti-SLAPP statute only

with respect to defendants Tofte and Brookfield, as the trial

court ruled defendant Schwanz had met her burden under

the first step of the anti-SLAPP statute, and plaintiffs do

not challenge that ruling.

In considering whether a claim arises from any con-

duct “in furtherance of * * * the constitutional right of free

speech in connection with a public issue or an issue of pub-

lic interest,” ORS 31.150(2)(d), our inquiry concerns, gener-

ally, “what sort of claim [it] is.” Mullen, 271 Or App at 705

(“The first part of the inquiry aims merely to assess more

generally what sort of claim this is—in this case, is it one

that arises out of conduct in furtherance of free speech in

connection with an issue of public interest?”). That inquiry

is not an inquiry into whether the defendant’s conduct was

wrongful. Id. (“The second part of the statutory inquiry in

ORS 31.150(3) addresses the merits of the plaintiff’s claim

against the defendant and, necessarily, whether a prima

facie case has been made as to the wrongfulness of the

defendant’s conduct.”).

16

Plaintiffs contend that ORS 31.150(2)(d) is not applicable, because defen-

dants’ conduct consisted of written statements, and this appeal should therefore

be analyzed under ORS 31.150(2)(c), which allows special motions to strike when

claims arise from “[a]ny oral statement made, or written statement or other docu-

ment presented, in a place open to the public or a public forum in connection with

an issue of public interest.” They then argue that ORS 31.150(2)(c) does not cover

the claims at issue here, because defendants’ written statements were not made

in “a place open to the public or a public forum,” as the NEEd Facebook group is

a private group not a public group. See 326 Or App at 723 n 3 (discussing types of

Facebook groups).

Plaintiffs’ argument fails; we have previously analyzed statements written

online under ORS 31.150(2)(d). Neumann v. Liles, 295 Or App 340, 344, 434 P3d

438 (2018), rev den, 365 Or 195 (2019) (ORS 31.150(2)(d) applicable to written,

online review of wedding venue).

742 DeHart v. Tofte

To satisfy the standard set forth in ORS 31.150

(2)(d), a defendant must demonstrate both that their conduct

(1) was “ ‘in furtherance of * * * the constitutional right of

free speech’ ”; and (2) was “ ‘in connection with a public issue

or an issue of public interest.’ ” Neumann, 295 Or App at 344

(quoting ORS 31.150(2)(d); omission in Neumann).

Although we have not yet considered and drawn the

precise outer limits of what activity can be said to be “in

furtherance of * * * the constitutional right of free speech”

under ORS 31.150(2)(d), courts considering an identically

worded provision of California’s anti-SLAPP statute—

which, as noted, is the statute upon which Oregon’s anti-

SLAPP statute was modeled—have noted that it “seems to

suffice * * * that the defendant’s activity is communicative.”

Hilton v. Hallmark Cards, 599 F3d 894, 904 (9th Cir 2010).

And we have held that if activity is protected by the First

Amendment to the United States Constitution, then that

activity is “in furtherance of * * * the constitutional right

of free speech” under ORS 31.150(2)(d). See Neumann, 295

Or App at 344 (defendant’s act of publishing such an opin-

ion online qualified as “conduct in furtherance of * * * the

constitutional right of free speech” for purposes of ORS

31.150(2)(d), because the right to post an “opinion of that

nature” is part of the “First Amendment right to free

speech”). But, under our case law, a defendant need not

demonstrate that their conduct was protected under the

First Amendment to be conduct “in furtherance” of the “con-

stitutional right to free speech.” See Mullen, 271 Or App at

705 (noting the merits of the plaintiff’s claim against the

defendant are addressed at the second step of the anti-

SLAPP inquiry).

Regarding what it means for conduct to be “in con-

nection with a public issue or an issue of public interest,”

we have interpreted “issue of public interest” to have its

“common-sense meaning”—namely, an issue that is of inter-

est to the public. Neumann, 295 Or App at 345; see also

Maloney v. T3Media, Inc., 94 F Supp 3d 1128, 1134 (CD Cal

2015), aff’d, 853 F3d 1004 (9th Cir 2017) (noting that courts

in California have interpreted “an issue of public interest”

to mean “any issue in which the public is interested” (inter-

nal quotation marks omitted)).

Cite as 326 Or App 720 (2023) 743

Applying those standards here, we conclude that

defendants met their burden. First, regarding whether each

defendant’s conduct was “in furtherance of the exercise of

the * * * constitutional right of free speech,” we highlight

that the First Amendment “does not preclude * * * threat-

ening social ostracism or vilification to advocate a politi-

cal position.” Planned Parenthood of Columbia/Willamette,

Inc. v. Am. Coal. of Life Activists, 290 F3d 1058, 1086 (9th

Cir 2002), as amended (July 10, 2002), cert den, 539 US

958 (2003) (emphases added). Nor does it preclude speech

that “embarrasses” or “coerces” another into certain action.

N. A. A. C. P. v. Claiborne Hardware Co., 458 US 886, 910,

102 S Ct 3409, 73 L Ed 2d 1215 (1982) (observing that speech

“does not lose its protected character * * * simply because it

may embarrass others or coerce them into action”).17

Here, Brookfield and Tofte engaged in “communi-

cative” conduct: In the NEEd Facebook group, Brookfield

posted the phone number for Shannon’s employer, Selectron

Technologies, and Tofte posted the website for DeHart’s

employer, Lam Research. Brookfield posted the phone

number of Selectron Technologies so people could engage

in conduct likely protected by the First Amendment—

specifically, expressing “their concerns about [Shannon’s]

demonstrated behavior.” And Tofte posted information con-

cerning DeHart’s employment in the context of a proposed

boycott of DeHart’s employer, and she encouraged members

of the NEEd group to engage in conduct likely protected

by the First Amendment—namely, communicating with

DeHart himself. As noted above, we need not decide whether

Tofte’s and Brookfield’s conduct itself was protected by the

First Amendment. We conclude, however, that that conduct

was “in furtherance of the exercise of the * * * constitutional

right of free speech” under Oregon’s anti-SLAPP statute.

Second, regarding whether each defendant’s con-

duct was in “connection with a public issue or an issue of

17

We understand the United States Supreme Court’s use of the word “coerce”

in N. A. A. C. P.—a case in which individuals sought to persuade others to join a

boycott “through social pressure and the ‘threat’ of social ostracism,” 458 US at

910-11—to have a different meaning than the use of that word in the Oregon stat-

utes concerning stalking protective orders. See ORS 163.730(1) (“ ‘Coerce’ means

to restrain, compel or dominate by force or threat.”).

744 DeHart v. Tofte

public interest,” bearing in mind that we “liberally” con-

strue the anti-SLAPP statute “in favor of the exercise of the

rights of expression” it protects, ORS 31.152(4), we conclude

that it was.

Notably, both Shannon and DeHart were elected

public officials who were in the public eye as a result of their

stance on an issue that affected a large number of people.

Cf. Living Vehicle, Inc. v. Kelley, 2:22-CV-06226-RGK-AS,

2023 WL 2347442 at *4 (CD Cal Jan 20, 2023) (noting

“California courts have described three categories of state-

ments that address issues of public interest: (1) a statement

that concerns a person or entity in the public eye; (2) state-

ments that could directly affect a large number of people

beyond the direct participants; and (3) statements that

involve a topic of widespread, public interest” (internal quo-

tation marks omitted)); Jackson v. Mayweather, 10 Cal App

5th 1240, 1254, 217 Cal Rptr 3d 234 (2017), as modified

(Apr 19, 2017) (“In general, a public issue is implicated if

the subject of the statement or activity underlying the claim

was a person or entity in the public eye.” (Internal quota-

tion marks, brackets, and ellipsis omitted.)); see also Gertz v.

Robert Welch, Inc., 418 US 323, 344, 94 S Ct 2997, 41 L Ed

2d 789 (1974) (“[S]ociety’s interest in the officers of govern-

ment is not strictly limited to the formal discharge of official

duties.”).

Further, there can be no dispute that the Ban itself

was an issue of significant public interest, having received

local, statewide, and national media attention. Although

the trial court did not see any “nexus” between the post-

ing of DeHart’s employer’s website and Shannon’s employ-

er’s phone number, on the one hand, and an issue of public

interest, on the other, the posting of DeHart and Shannon’s

employment information furthered lawful forms of civic

engagement on that issue by members of the public—such

as boycott—and informing DeHart’s and Shannon’s employ-

ers of the reason for the boycott. Cf. Brayshaw v. City of

Tallahassee, Fla., 709 F Supp 2d 1244, 1249 (ND Fla 2010)

(explaining that publication of the home addresses and

phone numbers of police officers was “linked to the issue of

police accountability,” which is an issue of “legitimate public

interest,” because it aids in “achieving service of process,

Cite as 326 Or App 720 (2023) 745

researching criminal history of officers, organizing lawful

pickets, and other peaceful and lawful forms of civic involve-

ment that publicize the issue”); Publius v. Boyer-Vine, 237 F

Supp 3d 997, 1013-14 (ED Cal 2017) (noting “several cases

demonstrate that the First Amendment protects the right to

publish highly personal information of private individuals,

such as the names of rape victims and juveniles involved

in legal proceedings, when they relate to matters of public

concern” and collecting cases).

We also think that the particular conduct giving rise

to the cause of action in this case—posting “contact informa-

tion” for plaintiff’s employers—cannot meaningfully be sep-

arated, under the first step of the anti-SLAPP statute, from

the larger political conversation that was taking place in the

NEEd Facebook group in response to an issue that had both

drawn widespread media attention and had actual impacts

on the lives of those attending and working in Newberg pub-

lic schools. See Mullen, 271 Or App at 706 (trial court erred

in narrowing the focus of the first step of the anti-SLAPP

statute “to the specific portion of defendants’ conduct that

plaintiffs found objectionable”).

For those reasons, we conclude that Brookfield and

Tofte met their burdens under the first step of the anti-

SLAPP statute. We emphasize that in reaching the conclu-

sion that Brookfield and Tofte have met their burden under

the first step of the anti-SLAPP statute we are not making a

normative judgment as to the societal acceptability and util-

ity of posting information concerning the private employers

of DeHart and Shannon online. But, as the United States

Supreme Court has observed in a different but related

context, the “inappropriate or controversial character of a

statement is irrelevant to the question whether it deals with

a matter of public concern.” Rankin v. McPherson, 483 US

378, 387, 107 S Ct 2891, 97 L Ed 2d 315 (1987).18

18

Plaintiffs posit that if “all information related to private employment of

public officials are per se matters of public interest, the legislature enacted a

statute in direct conflict with ORS 31.150 [(the anti-SLAPP statute)] when they

created ORS 30.835 [(the anti-doxing statute)].” We do not hold “all information

related to private employment of public officials are per se matters of public inter-

est.” But, in any event, there is no conflict between ORS 31.150 and ORS 30.835.

The former, the anti-SLAPP statute, as noted, is a procedural mechanism to

allow defendants, before incurring significant expenses, “to expeditiously move

746 DeHart v. Tofte

B. Anti-SLAPP Step 2: Did plaintiffs meet their burden of

presenting substantial evidence in support of a prima

facie case on the anti-doxing claims?

Having concluded that Brookfield and Tofte have

met their burden under the first step of Oregon’s anti-

SLAPP statute, we turn to the second step and consider

whether plaintiffs in the action have established “that

there is a probability that the plaintiff[s] will prevail on

the claim[s] by presenting substantial evidence to support

a prima facie case.” ORS 31.150(3). Here, because the trial

court ruled against defendants Tofte and Brookfield on the

initial inquiry, it did not reach the question of whether plain-

tiffs had made the necessary showing under the second step

of Oregon’s anti-SLAPP statute with regard to those two

defendants. However, that question was fairly presented to

the trial court, and the record is sufficiently developed to

enable our review. Accordingly, we proceed to that inquiry

with regard to all defendants. See Mullen, 271 Or App at 707

(taking that approach).

As set forth above, to prevail on their claims for

“improper disclosure of private information” under ORS

30.835(2), plaintiffs must establish “by a preponderance of

the evidence” that:

“(a) The defendant, with the intent to stalk, harass or

injure the plaintiff, knowingly caused personal informa-

tion to be disclosed;

“(b) The defendant knew or reasonably should have

known that the plaintiff did not consent to the disclosure;

“(c) The plaintiff is stalked, harassed or injured by the

disclosure; and

“(d) A reasonable person would be stalked, harassed or

injured by the disclosure.”

As noted, in this case, plaintiffs alleged that they

were “harassed” by the disclosure of their personal informa-

tion and that a “reasonable person would be harassed by the

to dismiss nonmeritorious claims that were filed in a strategic effort to chill par-

ticipation in public affairs.” C.I.C.S. Employment Services, 291 Or App at 319

(internal quotation marks omitted). The latter, the anti-doxing statute, creates a

substantive cause of action.

Cite as 326 Or App 720 (2023) 747

disclosure.” Oregon’s anti-doxing statute defines “harass” to

mean to

“subject another to severe emotional distress such that the

individual experiences anxiety, fear, torment or apprehen-

sion that may or may not result in a physical manifestation

of severe emotional distress or a mental health diagnosis

and is protracted rather than merely trivial or transitory.”

ORS 30.835(1)(c) (emphasis added).

On appeal, defendants challenge various aspects

of plaintiffs’ attempt to make a prima facie case. We need

not address the majority of those challenges by defendants,

because, as explained below, we conclude that plaintiffs’

claims fail because plaintiffs did not make a prima facie

showing that reasonable people in plaintiffs’ positions would

suffer severe emotional distress as a result of defendants’

disclosures of plaintiffs’ “personal information.”19 In reach-

ing that conclusion, we note that, whether the facts and cir-

cumstances would allow for a determination that emotional

distress was objectively reasonable is a legal question. See

T. M. E. v. Strope, 307 Or App 156, 160, 476 P3d 972 (2020)

(reversing issuance of permanent stalking protective order

where there was “insufficient evidence from which the trial

court could conclude, given the circumstances, that petition-

er’s alarm was objectively reasonable”); see also Restatement

(Second) of Torts § 46 comment j (1965) (“It is for the court

to determine whether on the evidence severe emotional dis-

tress can be found; it is for the jury to determine whether, on

the evidence, it has in fact existed.”).

Before turning to the facts of this case, we empha-

size four observations that inform our analysis.

19

In particular, we highlight that, on appeal, defendants advance an argu-

ment that Tofte posting the website of DeHart’s employer did not constitute dis-

closing “contact information” under ORS 30.835(1)(d)(B). However, given that we

conclude plaintiffs failed to make a prima facie case that a reasonable person in

their circumstances would be harassed, we need not reach that argument.

Similarly, we need not address the merits of defendants’ arguments that the

anti-doxing statute, as applied to defendants, violates Article I, section 8, of the

Oregon Constitution and the First Amendment to the United States Constitution;

that defendants did not know, and could not have known, that plaintiffs objected

to the posting of their publicly available employment information; and that plain-

tiffs failed to present prima facie evidence that they were actually harassed or

that any harassment was caused by defendants.

748 DeHart v. Tofte

First, ORS 30.835 does not define “severe emotional

distress,” other than that it means “anxiety, fear, torment

or apprehension” that is “protracted” rather than “trivial or

transitory,” and the legislative history does not shed addi-

tional light on the meaning of “severe emotional distress.”

However, it is evident from the definition of “harass” that

not all emotional distress is sufficient to assert a cause of

action under ORS 30.835; rather, the emotional distress

must be “severe” in nature. See Webster’s Third New Int’l

Dictionary 2081 (unabridged ed 2002) (defining severe as “of

a great degree or undesirable or harmful extent”). Under

our case law, a determination of whether emotional distress

is “severe” requires consideration of its “duration and inten-

sity.” Checkley v. Boyd, 170 Or App 721, 742, 14 P3d 81 (2000),

rev den, 332 Or 239 (2001); see also Dept. of Transportation v.

Stallcup, 341 Or 93, 99, 138 P3d 9 (2006) (“[W]e give words

that have well-defined legal meanings those meanings.”).

And the Restatement section 46 comment j provides the fol-

lowing explanation of “severe” emotional distress:

“Complete emotional tranquility is seldom attainable in

this world, and some degree of transient and trivial emo-

tional distress is a part of the price of living among peo-

ple. The law intervenes only where the distress inflicted

is so severe that no reasonable [person] could be expected

to endure it. * * * The distress must be reasonable and jus-

tified under the circumstances, and there is no liability

where the plaintiff has suffered exaggerated and unrea-

sonable emotional distress * * *.”

Second, for a disclosure of “personal information” to

be actionable, the disclosure must be of the sort that would

cause a “reasonable” person severe emotional distress. The

word “ ‘reasonable’ inherently requires consideration of the

relevant circumstances, as nothing is ‘reasonable’ or ‘unrea-

sonable’ in a vacuum.” Dept. of Human Services v. D. E. A.,

314 Or App 385, 392, 499 P3d 876, rev den, 368 Or 787 (2021);

see also id. (citing Webster’s Third New Int’l Dictionary 1892

(unabridged ed 2002) as defining “reasonable” to mean “being

or remaining within the bounds of reason : not extreme : not

excessive”); J. D. K. v. W. T. F., 276 Or App 533, 538, 369

P3d 1181 (2016) (to determine whether “a petitioner’s appre-

hension is objectively reasonable” for issuance of a stalking

Cite as 326 Or App 720 (2023) 749

protective order under the ORS 30.866, we “consider all of

the circumstances of the parties’ relationship”).

Third, relatedly, each of the plaintiffs in this case

is a “public official,” not a “private individual.” See Gertz,

418 US at 345 (drawing distinction between “public officials”

and “private individuals”). Plaintiffs and defendants treat

the fact that plaintiffs are public officials as a relevant cir-

cumstance in determining whether their “severe emotional

distress” was “reasonable,” and we agree that it is a rele-

vant circumstance. As the United States Supreme Court

has observed, “[a]n individual who decides to seek govern-

mental office must accept certain necessary consequences of

that involvement in public affairs,” including that the indi-

vidual “runs the risk of closer public scrutiny than might

otherwise be the case,” and has relinquished some part of

their “interest in the protection of [their] own good name.”

Id. For example, “[c]ommunications media are entitled to

act on the assumption that public officials and public fig-

ures have voluntarily exposed themselves to increased risk

of injury from defamatory falsehood concerning them,” but

“[n]o such assumption is justified with respect to a private

individual.”20 Id.

Fourth, the statutory scheme indicates that the leg-

islature did not contemplate that any “disclosure” of “per-

sonal information” of the type listed in ORS 30.835(1)(d)

would cause a “reasonable person” to be “stalked, harassed

or injured.” That is evident because, if it were otherwise, then

ORS 30.835(2)(d) requiring that the disclosure would cause

a “reasonable person to be stalked, harassed or injured”

would be surplusage. State v. Stamper, 197 Or App 413, 418,

20

We pause to note that the legislative history of ORS 30.835, as described

above, evinces a legislative intent that public officials are not excluded from the

protections offered by ORS 30.835. See, e.g., Audio Recording, House Committee

on Judiciary, Subcommittee on Equitable Policing, HB 3047, Mar 10, 2021, at

53:36 (comments of Rep Ron Noble) (“This bill provides an avenue to protect

everyone.” (Emphasis added.)). We emphasize that we do not understand the legis-

lature to have categorically excluded public officials from the protections offered

by ORS 30.835.

Nevertheless, for the reasons stated, we believe the fact that a person is a

public official is a relevant circumstance in determining whether “severe emo-

tional distress” as a result of a disclosure of “personal information” was reason-

able under ORS 30.835.

750 DeHart v. Tofte

106 P3d 172, rev den, 339 Or 230 (2005) (“[W]e assume that

the legislature did not intend any portion of its enactments

to be meaningless surplusage.”).

Having made those observations, we turn back to

the facts of the instant case, and we conclude that, given

all of the particular circumstances present here, “reason-

able” people in plaintiffs’ positions would not suffer “severe

emotional distress,” as those terms are used in Oregon’s

anti-doxing statute, ORS 30.835, as a result of defendants’

disclosures.

To start, the identity of each plaintiffs’ employer

was information that each plaintiff had actively publicized,

not information that any of the plaintiffs had sought to keep

private: Plaintiff Shannon described his employment at

Selectron Technologies on his School Board campaign web-

site and his LinkedIn page; plaintiff DeHart included his

employment with Lam Research on his LinkedIn page; and

plaintiff Brown gave an interview to the Canby Herald in

which he discussed both his employment as a tennis coach

in Canby and his position on the School Board, and he put

forth his work as a coach as a qualification for serving as a

member of the School Board. We note that the purpose of

professional networking websites such as LinkedIn, and the

purpose of campaign websites, is to publicize information,

not to keep such information private. And, generally speak-

ing, it seems that statements are given to newspapers with

the understanding that they will be published and read.

Moreover, the “personal information” that was pub-

lished about each of plaintiffs’ employers was information

readily publicly available based on the information plain-

tiffs themselves had promoted either on campaign websites,

LinkedIn, or in the Canby Herald. We think the public and

readily available nature of the “personal information” dis-

closed bears on the reasonable amount of “emotional dis-

tress” that a public official might feel upon having that

information disclosed.

Additionally, the type of personal information dis-

closed coupled with other circumstances of the disclosures

militate against a determination that any “severe emotional

distress” felt by plaintiffs as a result of the disclosures was

Cite as 326 Or App 720 (2023) 751

objectively reasonable. Regarding the nature of the personal

information disclosed, in the case of Brown, it was the phone

number and email address of his supervisor, the athletic

director of Canby schools; in the case of DeHart, it was the

website of his employer; and, in the case of Shannon, it was

the phone number of his employer.

In no way do we minimize the emotional distress

that might be felt as a result of such disclosures. But we note

that ORS 30.835(1)(d) covers a variety of personal informa-

tion, and we think that human experience teaches that the

disclosures in this case might be less likely to cause a pub-

lic official “severe emotional distress,” as that term is used

in Oregon’s anti-doxing statute, ORS 30.835, than someone

posting, for example, photographs of the public official’s chil-

dren, the public official’s home address, and the names of the

schools the public official’s children attend. ORS 30.835(1)(d)

(“personal information” includes “[p]hotographs of the plain-

tiff’s children,” “[i]dentification of the school that the plain-

tiff’s children attend,” and “plaintiff’s home address”). And

as noted, the statutory scheme indicates that the legislature

did not contemplate that any “disclosure” of “personal infor-

mation” of the type listed in ORS 30.835(1)(d) would neces-

sarily cause a reasonable person to be “stalked, harassed or

injured.”

Other circumstances of the disclosures in this case

also militate against a conclusion that any severe emotional

distress felt by plaintiffs was reasonable. The disclosures of

personal information here were made in a private Facebook

group with around 649 members comprised mostly of par-

ents of students in Newberg public schools. There is no evi-

dence in the record that any actual violence, vandalism,

stalking, or criminal activity had been linked to that group;

and indeed, although each plaintiff had developed a belief

that their employer was contacted, there is no direct evi-

dence that anyone actually contacted Brown’s, DeHart’s, or

Shannon’s employer as a result of Schwanz’s, Tofte’s, and

Brookfield’s disclosures. In that regard, we note that the

doxing of Brown, DeHart, and Shannon was less threat-

ening than much of the doxing of public officials the legis-

lature heard about when enacting ORS 30.835. Cf. Audio

Recording, House Committee on Judiciary, Subcommittee

752 DeHart v. Tofte

on Equitable Policing, HB 3047, Mar 10, 2021, at 43:12 (com-

ments of Rep Bill Post) (describing being doxed on Twitter by

a “national journalist” with 1.5 million followers, including

the release of his Social Security number and a picture of

his house); Audio Recording, House Committee on Judiciary,

Subcommittee on Equitable Policing, HB 3047, Mar 1, 2021,

at 51:00 (comments of Jon Isaacs) (describing doxing result-

ing in “attacks on the homes of elected officials” including

an attempt to start a fire at one official’s home).

In sum, we think that, given the supporting and

opposing affidavits on file, plaintiffs failed to make a prima

facie case that the severe emotional distress they suffered as

a result of the disclosures of information about their employ-

ers was reasonable, as required to state a cause of action

for improper disclosure of private information under ORS

30.835.

IV. CONCLUSION

We emphasize, again, that we are not making a nor-

mative judgment as to the societal acceptability and utility

of posting information concerning the private employers of

public officials on the internet.

Also, we again highlight that in no way do we

minimize the emotional distress felt by plaintiffs Brown,

Shannon, and DeHart, as attested to in their affidavits

opposing defendants’ special motions to strike.

Nevertheless, on this record, and within the context

of Oregon’s anti-doxing statute, we are compelled to conclude

that plaintiffs did not meet their burden to proceed with

their claim for improper disclosure of private information

under ORS 30.835. Consequently, we reverse and remand.

Reversed and remanded.