A defamation lawsuit against the Palo Alto Weekly and parent company Embarcadero Media by an unsuccessful 2018 candidate for Palo Alto Unified School District Board of Education has been rejected by the California Court of Appeal.

The Sixth Appellate Court's three-judge panel, which issued its decision on Jan. 5, upheld a July 2020 decision by Santa Clara County Superior Court Judge Sunil Kulkarni granting Embarcadero Media's motion to dismiss the case. Both decisions found Christopher Boyd did not present any admissible evidence to support his claims that the Weekly's reporting was false or that the paper acted with actual malice, the legal standard for a public figure to prevail in a defamation case.

Representing himself, Boyd filed his lawsuit in November 2019, a year after the election in which he finished in last place with 370 votes. The suit claimed defamation, intentional infliction of emotional distress and intentional infliction of mental and personal injury through "unlawful profiling" by the paper of certain candidates. The paper had published articles in its print and digital editions and an editorial that called into question Boyd's claims that an educational foundation he said he spearheaded was a legally established California and tax-exempt 501(c)(3) nonprofit entity.

Embarcadero Media filed an "anti-SLAPP" motion to dismiss the case on Jan. 21, 2020, arguing the articles were accurate and Boyd's complaint offered no evidence to the contrary, much less show the required likelihood of prevailing. A "SLAPP" lawsuit, or "strategic lawsuit against public participation," is litigation of a harassing nature brought to challenge the exercise of free-speech rights, according to court definitions. The statute aims to more quickly resolve meritless lawsuits that threaten to stifle free speech on matters of public interest.

As a candidate for school board Boyd came under investigation by the paper after research conducted in preparation for an interview found no incorporation, tax or other records for Insted, the organization Boyd said he directed. Insted's website described it as a tax-exempt 501(c)(3) entity operating an experimental afterschool program using Stanford University post-doctoral students to teach undergraduate-level courses in subjects such as chemistry, robotics and astrophysics to elementary- and middle-school students.

But there was no evidence that Insted existed as a legal entity, according to court documents and declarations made by Johnson, Editor-in-Chief Jocelyn Dong and then-Education and Youth Reporter Elena Kadvany.

Johnson searched the California Secretary of State's registered business database, which requires nonprofit, tax-exempt entities to file their articles of incorporation with the state. Insted was not listed in the database as a corporation or LLC.

Johnson also researched online information by searching for details regarding Insted and the Institute for Education Management, an entity that Boyd claimed was the umbrella organization or fiscal sponsor for Insted. Johnson also checked Guidestar, a publicly available source for nonprofit records and Internal Revenue Service filings but found nothing to substantiate Boyd's claims for either Insted or the Institute of Education Management, he said in his court declaration.

During the September 2018 recorded candidate interview, which was later posted on the Palo Alto Online YouTube channel, Johnson asked Boyd whether Insted and Institute for Education Management were the same organization. Boyd said the Institute for Education Management "is a nonprofit (that) has existed for decades" and sponsored Insted. He added that the institute was based in Palo Alto and that he didn't run it; he didn't know who was running it and didn't know who was on its board. He said that charitable contributions can be made to Insted through the Institute of Education Management.

Johnson informed Boyd that he wasn't able to find a public record for either entity. Boyd subsequently provided the paper with a tax identification number for the Institute of Environmental Management, a third entity with an entirely different mission based on biofuels technology and reduction of solid waste, the paper noted.

The paper found state tax and business filings for the environmental organization and Kadvany contacted the group's listed CEO, who "disclaimed any association" with Boyd and wrote in an email he "was never authorized to represent himself as having worked for or (having been) affiliated or involved with the Institute for Environmental Management." The institute also had not been active for several years, the paper learned.

After a follow-up email from Johnson seeking further clarification, Boyd sent him a 2015 email from Don Augenstein, a founding member at the Institute for Environmental Management. It included a draft email to PayPal for Boyd to review with directions on how to set up a way for Boyd to collect donations through the Institute for Environmental Management's PayPal account.

Johnson told Boyd that the email didn't provide any useful information establishing the actual nonprofit status of Insted other than that Augenstein and Boyd had made arrangements to accept money through his PayPal account, and that Augenstein was apparently using his nonprofit status for one organization to assist an entity that isn't a nonprofit, nor was it registered in California. There was no indication that Augenstein's organization had ever made any financial disbursements to Boyd or Insted, Johnson noted.

Johnson separately notified Boyd the issue of possible misrepresentation was relevant to his candidacy on the school board. Unless Boyd was able to answer the questions posed by the paper, it would withdraw its invitation to him for the newspaper's school board candidate forum that fall. Boyd didn't respond.

The appeal court found that the paper had done its due diligence in its pre-publication investigations. It also affirmed the rulings of the Santa Clara County Superior Court, which found Embarcadero and the Weekly had acted within the scope of a protected activity — news reporting on an election candidate.

Boyd could not meet the evidentiary burden because the allegedly defamatory remarks were substantially true; as a public figure, Boyd couldn't show that the allegedly defamatory remarks were made with actual malice; the newspaper's exclusion of Boyd from the debate was also constitutionally protected as free speech; Boyd's claims of emotional and mental distress were based on the same factual allegations and were superfluous and subject to dismissal. The appeal court agreed.

In its opinion, the appeal court agreed with the Santa Clara County Superior Court, which found that news reporting on an election candidate is protected "free speech activity" within the meaning of the anti-SLAPP statute. The lower court also found that Boyd didn't supply "any evidence, much less admissible evidence, in support of his claims," the appeal justices noted. The trial court also threw out Boyd's claims of emotional and mental damage and noted that as the prevailing party, Embarcadero is entitled to recover attorney fees and costs.

"We are happy to have this case, which was totally without merit from the start, finally concluded with a strong appellate court decision affirming the ruling in Superior Court," Johnson said.