LAWRENCE-BERREY, J.

¶ 1 James Ryan engaged in vitriolic Internet blogging against Yvonne Johnson. Johnson sued Ryan for defamation and tortious interference with business expectancy. Ryan defended the suit, in part, by asserting the anti-SLAPP statute.1 As permitted by that statute. Ryan filed a prediscovery motion to strike. He argued that Johnson's claims should be dismissed because his speech was protected speech in that his attacks against Johnson were matters of public concern. The trial court agreed and dismissed Johnson's claims. We hold that Johnson's blogging was primarily for personal concern, not public concern, and reverse the dismissal of Johnson's claims.

FACTS

¶ 2 As discussed later, we accept the facts and all reasonable inferences in the light most favorable to Yvonne Johnson, the party resisting the motion to strike.

¶ 3 The Spokane Civic Theatre (the Theatre) is a not-for-profit, performing arts theatre located in Spokane. The Theatre is a private foundation receiving support from private donors and operating with an endowment. On a donation web page, the Theatre notes:

Clerk's Papers (CP) at 29.

¶ 4 In 2005, the Theatre hired plaintiff Yvonne Johnson as its executive artistic director. Johnson is a highly acclaimed theatre veteran who was selected from scores of applicants. At the time of her hiring, the Theatre was on the cusp of financial ruin. By 2010, despite the economic recession, Johnson had doubled revenue for the Theatre. This economic feat was accomplished through a significant increase in ticket sales, expansion of the Theatre's training camp for children, and numerous fundraising endeavors. Johnson's financial acumen and ingenuity allowed the Theatre to expand its full-time staff by several positions, including a full-time music director.

¶ 5 On August 19, 2010, Johnson hired defendant James Ryan as full-time music director for the Theatre. Ryan moved with his family from another state to Spokane. He understood the job had a three-year term.

¶ 6 Two months after the hiring, Johnson terminated Ryan's employment at the direction of the Theatre's board. Prior to Ryan's termination, the Theatre received an anonymous e-mail disclosing the nonmonogamous nature of Ryan's marriage, as well as Ryan's use of graphically nude photographs and texts while engaging in online sex solicitations. The Theatre also discovered that Ryan noted that he was employed by the Theatre and used his Theatre employee photograph in advertising for sex. According to Johnson, the Theatre learned that Ryan initiated some of his sexual solicitations while backstage on Theatre premises.

¶ 7 Johnson wrote a lengthy termination letter to Ryan. In summary, the letter noted that he was being terminated not because of his swinger lifestyle but because his coupling of his lifestyle with his employment at the Theatre had the potential for offending parts of the local community and thus reducing the Theatre's donations. Mr. Ryan admits that he posted a discreet listing on Craigslist for sex, although he denies that it included any information that identified his name or his employer. Rather, he contends that all identifying information was forwarded to the Theatre by an anonymous e-mailer, who in turn had received it from someone Mr. Ryan had met through Craigslist.

¶ 8 Being without a job, Ryan had time to obsess over his firing from the Theatre. On October 18, 2010, Ryan began a public campaign to discredit Johnson for terminating his employment. According to Johnson, the campaign began when Ryan sent an e-mail to her and posted the message on Facebook, although the e-mail is not part of the record. On October 24, 2010, Ryan began posting negative statements about Yvonne Johnson on the Internet via a blog entitled "thetyrannyofyvonne." Clerk's Papers (CP) at 99.

¶ 9 Ryan obtained the domain names of "spokanecivictheater.org" and "spokanecivictheatre.org." CP at 99. The Theatre's domain address was "spokanecivictheatre.com." The similarity in domain names caused confusion for those wishing to locate the Theatre's website. Anyone who mistakenly searched for the Theatre's website by utilizing one of his created addresses was immediately routed by Ryan's design to his sites. On April 29, 2011, Ryan began posting negative statements about Johnson on his two sites. In general, these blogs provide a lengthy chronology of Ryan's ongoing post-employment dispute with Johnson through various tribunals. This tedious chronology is set forth in some detail by the dissent. Within this tedious chronology is an isolated and vague reference that the Theatre board must be publicly held to account for failing to exercise its duties. This vague reference likely was to a wrongful discharge lawsuit that Ryan filed soon afterward against the Theatre.

¶ 10 Johnson alleges that Ryan sought to prevent her from gaining employment in the theater world. She cites a November 14, 2011 blog Ryan wrote:

CP at 108.

¶ 11 In a similar vein, Ryan wrote in red letters at the beginning of a blog on February 8, 2013:

CP at 104.

¶ 12 Johnson also alleges that Ryan's blog attacks sought to coerce a financial settlement with the Theatre. In the same February blog, Ryan discussed a summary judgment ruling against him in the wrongful discharge lawsuit he filed against the Theatre. According to Ryan, prior to the dismissal of his lawsuit he offered to settle his case for one year's salary and moving expenses but now that his lawsuit was dismissed, the Theatre would be required to pay "serious money" to "end this thing." CP at 10. He also blogged that public ridicule is the only remedy for actions that fall into this category and this was their best chance to end this thing with a reasonable settlement and a nondisclosure.

PROCEDURE

¶ 13 On April 5, 2013, Yvonne Johnson filed suit against James Ryan for intentional interference with business expectancy and defamation. Johnson sought damages and injunctive relief. In his amended answer, James Ryan sought dismissal of Johnson's complaint under RCW 4.24.525, the anti-SLAPP statute, together with an award of statutory damages and reasonable attorney fees.

¶ 14 On May 31, 2013, Ryan brought a motion to strike, pursuant to RCW 4.24.525. Ryan argued that his online postings simply provided a public forum for discussion and dissemination of commentary, complaints, and general information related to the Theatre. He asserted that his online cyber-conduct addressed matters of public concern, evidenced by Internet traffic the blog purportedly received. Ms. Johnson countered that the postings were merely a private concern and not protected by the statute.

¶ 15 The trial court granted Ryan's motion after concluding that Ryan's online blogging activity addressed speech on a matter of public concern. The trial court awarded Ryan $10,000 in statutory damages and $8,358.40 in reasonable attorney fees and costs. Johnson appealed.

LAW AND ANALYSIS

¶ 16 In 1989, Washington adopted the nation's first anti-SLAPP law, still codified under RCW 4.24.500 to .520. The law, known as the Brenda Hill Bill, provides immunity from civil liability for claims based on good-faith communication with the government regarding any matter of public concern. Tom Wyrwich, A Cure for a "Public Concern": Washington's New Anti-SLAPP Law, 86 WASH. L.REV. 663, 669 (2011). The Brenda Hill Bill was not without defect, since it did not provide a method for early dismissal. Id. With courts unable to dismiss SLAPPs before discovery, defendants had no means of escaping the significant legal expenses SLAPPS purposefully inflicted. Id. at 669-70.

¶ 17 In March 2010, the Washington Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. LAWS OF 2010, ch. 118, § 4. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. Wyrwich, supra, at 663. The 2010 Washington Act contains a declaration of purpose:

LAWS OF 2010, ch. 118, § 1.

¶ 18 This declaration of purpose evidences the legislative goals of balancing the rights of both plaintiffs and defendants, yet allowing expedited judicial review and dismissal of those defamation claims brought abusively for the primary purpose of chilling protected public speech. The legislature directed courts to apply and construe the Act "liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts." LAWS OF 2010, ch. 118, § 3.

¶ 19 The new addition to Washington's anti-SLAPP laws is codified at RCW 4.24.525. RCW 4.24.525(4)(a) allows a party to bring a special motion to strike any claim that is based on an "action involving public participation and petition." Section 4 of the statute outlines the procedure to follow to respond to a SLAPP suit. The section provides:

RCW 4.24.525.

Davis v. Cox, 180 Wn.App. 514, 528, 325 P.3d 255 (2014) (quoting Dillon v. Seattle Deposition Reporters, LLC, 179 Wn.App. 41, 67-68, 316 P.3d 1119, review granted, 180 Wn.2d 1009, 325 P.3d 913 (2014)).

¶ 20 Because RCW 4.24.525 provides an expedited summary judgment procedure, courts apply summary judgment standards when ruling upon RCW 4.24.525 motions to strike: "`[T]he trial court may not find facts, but rather must view the facts and all reasonable inferences in the light most favorable to the plaintiff'" Davis, 180 Wash.App. at 528, 325 P.3d 255 (quoting Dillon, 179 Wash. App. at 90, 316 P.3d 1119). In addition, we review the grant or denial of an anti-SLAPP motion de novo. Dillon, 179 Wash.App. at 70, 316 P.3d 1119; City of Longview v. Wallin, 174 Wn.App. 763, 776, 301 P.3d 45, review denied, 178 Wn.2d 1020, 312 P.3d 650 (2013).

"PUBLIC PARTICIPATION" UNDER ANTI-SLAPP STATUTE

¶ 21 RCW 4.24.525(2) identifies the communications protected by the statute. Subsections (a) through (c) involve communications to government. Subsections (d) and (e) involve speech in other contexts. RCW 4.24.525 reads, in relevant part:

(Emphasis added). Because this case concerns "written statements" instead of "other lawful conduct," our review of the lower court's dismissal is limited to RCW 4.24.525(2)(d). We, therefore, next examine the "public forum" and "public concern" requirements of RCW 4.24.525(2)(d).

¶ 22 Public Forum. Courts have readily found that the Internet is a public forum. ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 113 Cal.Rptr.2d 625 (2001). Hatch v. Superior Court, 80 Cal.App.4th 170, 201, 94 Cal.Rptr.2d 453 (2000) noted that Internet communications are "classical forum communications."

¶ 23 Public Concern. Because the California anti-SLAPP statute serves as a model for the Washington Act, some authorities have applied the borrowed statute rule to interpret the Washington Act. See Alaska Structures, Inc. v. Hedlund, 180 Wn.App. 591, 599, 323 P.3d 1082 (2014); Fielder v. Sterling Park Homeowners Ass'n, 914 F.Supp.2d 1222, 1231 n. 4 (W.D.Wa.2012); Aronson v. Dog Eat Dog Films, Inc., 738 F.Supp.2d 1104, 1110 (W.D.Wa.2010). "Under the borrowed statute rule, courts find that when the legislature borrows a statute from another jurisdiction, it implicitly adopts that jurisdiction's judicial interpretations of the statute." Wyrwich, supra, at 690. However, California's statute uses the phrase, "public interest," whereas Washington's statute uses the phrase, "public concern." "[W]here the legislature modifies or ignores a provision of the borrowed statute, it implicitly rejects that provision and its corresponding case law." Id. "The Washington State Supreme Court has found that when the legislature deviates from a model act, it is `bound to conclude' that the deviation `was purposeful' and evidenced an intent to reject those aspects of the model act." Id. (citing State v. Jackson, 137 Wn.2d 712, 723, 976 P.2d 1229 (1999)). We also note that both Washington and federal authorities have defined "public concern" in the context of defamation law. Accordingly, when determining whether speech or conduct is of "public concern," Washington courts should focus on well-developed Washington and federal decisional law rather than California decisions.2

¶ 24 Speech is of public concern when it can "`be fairly considered as relating to any matter of political, social, or other concern to the community.'" Davis, 180 Wash. App. at 531, 325 P.3d 255 (quoting Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 1216, 179 L.Ed.2d 172 (2011)). For purposes of analyzing federal authorities, Alaska Structures quotes Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132, 2 Cal.Rptr.3d 385 (2003):

Alaska Structures, 180 Wash.App. at 602-03, 323 P.3d 1082.

¶ 25 Our own courts have discussed the meaning of "public concern" in the context of free speech rights. In White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997), the court held that the challenged speech was a matter of public concern. There, Judy White was a secretary/clerk typist at a state-run nursing home. Id. at 4-5, 929 P.2d 396. After being so employed for several years, the nursing home hired Evelyn Blanchard to be the director of nursing services. Id. at 5, 929 P.2d 396. The working relationship was often strained between White and Blanchard. In 1988, a resident of the home became very disruptive and behaved in a way that might harm himself and others. Id. Eventually, Blanchard directed that the resident be placed in a restraint jacket. Id. The jacket was in place for a couple hours until the home's medical director refused to sign an order permitting its use. Ultimately, White filed an incident report alleging that Blanchard committed patient abuse in authorizing the use of the jacket. Id. at 6, 929 P.2d 396. After an outside investigation, the allegation was dismissed. Soon after, White was transferred to a different facility. Unbeknownst to her, the transfer had been contemplated months before the incident report. White sued for wrongful transfer. The trial court granted the home's summary judgment motion. On appeal, our high court affirmed the dismissal on causation grounds. Prior to reaching causation, however, the court held:

Id. at 11-13, 929 P.2d 396 (citations omitted).

¶ 26 In Alpine Industries Computers, Inc. v. Cowles Publishing Co., 114 Wn.App. 371, 57 P.3d 1178 (2002), this court held that the challenged speech was a matter of public concern. There, a reporter for the Spokesman-Review wrote a story about a recent federal court decision favoring Microsoft over a local company, Alpine Industries Computers, Inc. The facts from the story came from the federal court file and primarily was based upon the judge's memorandum opinion. Id. at 376, 57 P.3d 1178. The gist of the story was that Microsoft obtained a large judgment against Alpine for selling pirated software and that Alpine's owner had acknowledged that he had wrongfully sold counterfeit software. Id. at 374-75, 57 P.3d 1178. The company brought suit against the newspaper's owner for defamation. In determining whether the story was of "public concern," we wrote:

Id. at 393-94, 57 P.3d 1178 (citation omitted). Other cases where we held that the challenged speech involved a matter of public concern include Davis, 180 Wash.App. at 530, 325 P.3d 255 (Because nonviolent boycotts are protected by the First Amendment, because the boycott was a form of protest of America's role in resolving the Middle East conflict, and because the plaintiff sought the remedy of injunctive relief, the speech was protected under RCW 4.24.525); and Spratt v. Toft, 180 Wn.App. 620, 632, 324 P.3d 707 (2014) (Former supervisor's alleged defamatory statements against coworker were public concern because the statements, made in connection with his political campaign, could fairly be considered as relating to a matter of political, social, or other concern to the community.).

¶ 27 In contrast, in Tyner v. Department of Social and Health Services (DSHS), 137 Wn.App. 545, 154 P.3d 920 (2007), we held that the challenged speech did not involve a matter of public concern. There, Paula Tyner was an administrator for a DSHS facility that cared for adults with developmental disabilities. Id. at 552, 154 P.3d 920, In the course of her employment, Tyner investigated an employee's sexual harassment complaint. Id. at 552-53, 154 P.3d 920. Later, human resources directed that the complaint be investigated further by a person a step above Tyner's rank. Id. at 553, 154 P.3d 920. Tyner commented that the complaint should not be forwarded to her supervisor, Jody Pilarski, because Tyner believed Pilarski would not do a thorough job. Id. Human resources disagreed and assigned the investigation to Pilarski. Id. During the course of this investigation, Pilarski received numerous complaints that Tyner had created a hostile work environment. Id. at 553-54, 154 P.3d 920. As a result of these complaints, Tyner was reassigned to region 5 headquarters in Tacoma. Id. at 554, 154 P.3d 920. Due to budget cuts, Tyner's position was eliminated and she was given different job duties at a different facility. Tyner sued. In her suit, Tyner claimed that she was retaliated against for exercising free speech; specifically, her comment that her supervisor should not be allowed to investigate the employee complaint. Id. at 555, 154 P.3d 920. She asserted that her comment addressed a matter of public concern because it involved a sexual harassment issue. Id. at 557, 154 P.3d 920. In rejecting her argument, we stated:

Id. at 557-59, 832 P.2d 1332 (emphasis added) (some alterations in original).

¶ 28 In Dillon, we find further support for the proposition that speech that only tangentially implicates a public issue is not a matter of public concern:

Dillon, 179 Wash.App. at 72, 316 P.3d 1119 (quoting Martinez v. Metabolife Int'l, Inc., 113 Cal.App.4th 181, 188, 6 Cal.Rptr.3d 494 (2003)).

¶ 29 In this case, we must construe all evidence and inferences in the light most favorable to Johnson, the party resisting the summary dismissal of her defamation claim. In doing so, we must determine whether the content, form, and context of the speech are primarily of a private or primarily of a public concern. As noted in Tyner, we may also examine the speaker's intent or motive. By examining the primary content, form, and context, we better achieve the legislative purpose of balancing the rights of both litigants so that the expedited summary process weeds out only those defamation claims brought for the abusive primary purpose of chilling valid free public speech. Conversely, were we to align ourselves with the dissent's California approach and examine whether the speech had merely a "connection" to a matter of public concern, we would be ignoring this stated legislative purpose.

¶ 30 Here, the primary content of Ryan's speech is a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss. The primary intent of the speech is not some lofty public good, but merely establishing that his employer was wrong in firing him. The form of the speech is a blog, useful for conveying either private or public concerns. The context of the speech arises out of a private employment dispute. Ryan primarily complains about how he was wrongfully terminated, what he has endured through various agency and court actions, and his desire for "serious money." The mere fact that these dominant themes are occasionally interspersed with collateral issues of protected public speech — e.g., the executive director of a theatre that depends on public participation and donations has a tyrannical management style — is not enough to transform a private dispute into a matter of public concern. In short, the content and context of Ryan's speech is primarily a matter of his own private concern and, therefore, is not protected public speech under RCW 4.24.525.

ATTORNEY FEES AND COSTS

¶ 31 Johnson seeks an award of reasonable attorney fees, litigation costs, and special damages of $10,000 under RCW 4.24.525(6)(a). RCW 4.24.525(6)(b) permits such an award if the court finds that a special motion to strike is frivolous or brought solely to cause unnecessary delay. Although we disagree with Ryan's claim of public concern, we do not find that his motion was frivolous nor do we find it was brought to cause unnecessary delay. We therefore reject Johnson's request.

¶ 32 In conclusion, we reverse the trial court's order striking Ms. Johnson's claims. We reinstate her claims and remand this case for further proceedings consistent with this opinion.

I CONCUR: SIDDOWAY, C.J.

SIDDOWAY, C.J. (concurring).

¶ 33 "[T]he individual's right to the protection of his good name `reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (quoting Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring)).

¶ 34 Had James Ryan responded to Yvonne Johnson's perceived wrongs against him by throwing a rock through her window or breaking her nose, she would have had a right to complete redress. Instead — if the allegations of her complaint are proved — he found a more brutally effective form of retribution: destroying her professional reputation.

¶ 35 Every defamation case presents an opportunity for us to reaffirm the importance of free speech to a democratic society. Here, a plaintiff claiming actual harm caused by culpable falsehood has had her complaint dismissed at the inception of her case. It is incumbent on us to consider the important interests she has at stake as well.

¶ 36 I agree with most of the majority opinion. I write separately to emphasize two matters that are important in construing the 2010 amendments to the anti-SLAPP statute.1

¶ 37 The first is that there is nothing in the statute or the legislature's findings that evinces a legislative intent to make substantive changes to the law of defamation. When it comes to defamation claims, the legislature's preamble to the 2010 legislation tells us that its intent was to enable defendants to extricate themselves at the earliest possible stage from a claim that is doomed from its inception, not to alter a plaintiff's right to redress for defamatory falsehoods — a right that arguably enjoys protection under article I, section 5 of the Washington Constitution.

¶ 38 Second, and more particularly, construing "public concern" as broadly as California's "public interest" standard will change our defamation law in a way that is inconsistent with the legislature's intent to "[s]trike a balance between the rights of persons to file lawsuits and to trial by jury and the right of persons to participate in matters of public concern." LAWS OF 2010, ch. 118, § 1(2)(a). It is critical, as the majority opinion holds, that we construe "public concern" as an intentional adoption of the longstanding standard for identifying speech entitled to heightened First Amendment protection. We should not look to cases construing California's far broader "public interest" standard, which is untethered to any value of the speech that it protects.

The constitutionalization of defamation law under the First Amendment already provides significant protections for speech

¶ 39 Over the last 50 years, protections for speech recognized under the First Amendment have restricted the states' freedom to define and impose damages on defamatory speech, transforming defamation law in ways that have consistently favored defendants. Before New York Times Co. v. Sullivan, 376 U.S. 254, 267, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), once a plaintiff alleged statements constituting "libel per se" that were of and concerning her, a defendant's only defense was to prove that his statements were true. General damages would be presumed. In New York Times, the United States Supreme Court concluded that applying the common law in favor of a public official suing for defamation was akin to punishing seditious libel, in violation of the speaker's First Amendment rights. It held that a public official could not recover damages for a defamatory falsehood relating to his official conduct "unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 279-80, 84 S.Ct. 710. It also required that actual malice be demonstrated with convincing clarity. Id. at 285-86, 84 S.Ct. 710.

¶ 40 In Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), which the Supreme Court decided later in 1964, the Court held that even though truth was not a defense to criminal libel at common law (since a purpose of criminal libel was to avert the possibility that even a truthfully maligned victim would breach the peace), true statements could not constitutionally be the subject of either civil or criminal sanctions where "discussion of public affairs" was concerned.

¶ 41 In Curtis Publishing Company v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Supreme Court extended the actual malice standard to plaintiffs who were "public figures" under ordinary tort rules. It characterized public figures as "command[ing] sufficient continuing public interest and ... sufficient access to the means of counter-argument to be able `to expose through discussion the falsehood and fallacies' of defamatory statements," either based on the public figure's "position alone" or by "purposeful activity amounting to a thrusting of [one's] personality into the `vortex' of an important public controversy." Id. at 155, 87 S.Ct. 1975 (quoting Whitney v. Cal., 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., dissenting)).

¶ 42 In Gertz, the Court retooled an earlier approach2 and held that the proper accommodation between the law of defamation and the freedoms protected by the First Amendment required differentiating between public officials and public figures, on the one hand, and private individuals, on the other. It held that the New York Times standard "defines the level of constitutional protection appropriate to the context of defamation of a public person." Gertz, 418 U.S. at 342, 94 S.Ct. 2997. But speaking of a private individual, the Court said:

Id. at 345, 94 S.Ct. 2997. Gertz held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id. at 347, 94 S.Ct. 2997. It also held that the plaintiff in Gertz — a public figure — could not recover presumed damages nor recover punitive damages unless the publication was made with actual malice. Id. at 349-50.

¶ 43 In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the Supreme Court held that a state could not impose sanctions for the accurate publication of the name of a rape victim obtained from judicial records maintained in connection with a public prosecution and which themselves were open to public inspection.

¶ 44 In 1981, our own Supreme Court went beyond the United States Supreme Court, holding that for "policy reasons, rooted in the First Amendment," an "early testing of plaintiff's evidence by a convincing clarity burden" was appropriate in all defamation cases, as to all elements — even in cases involving private plaintiffs, if the offending publication addressed a matter of public concern. Mark v. Seattle Times, 96 Wn.2d 473, 487, 635 P.2d 1081 (1981). The viability of that holding is questionable in light of later cases. See Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 170-71, 736 P.2d 249 (1987) (appearing to tie summary judgment standard to the standard of proof at trial); Haueter v. Cowles Publ'g Co., 61 Wn.App. 572, 582, 811 P.2d 231 (1991) (concluding that "[n]either the common law nor the First Amendment ... requires proof of any element of a defamation action, other than actual malice, by evidence of convincing clarity"); Richmond v. Thompson, 130 Wn.2d 368, 385-86, 922 P.2d 1343 (1996) (rejecting the position that the First Amendment demands the application of a higher evidentiary standard at the summary judgment stage); Mohr v. Grant, 153 Wn.2d 812, 822 & nn. 7-8, 108 P.3d 768 (2005) (stating that "[c]ase law is unclear as to whether a private plaintiff facing a defense motion for summary judgment must make a prima facie showing of all of the elements of defamation with convincing clarity or by a preponderance of the evidence," and deferring clarification "for another day"); Mohr, 153 Wash.2d at 833, 108 P.3d 768 (Chambers, J., dissenting) (citing Mark's conclusion that a private plaintiff resisting a defense motion for summary judgment must establish a prima facie case by convincing clarity as "the concession defamation law makes to the First Amendment").

¶ 45 Returning to United States Supreme Court precedent, in a 1984 defamation action brought by the Bose Corporation, the Court recognized a heightened standard for appellate review in favor of defamation defendants, holding that "in cases raising First Amendment issues ... an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times, 376 U.S. at 284-86, 84 S.Ct. 710).

¶ 46 In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 751, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), a majority of justices reasoned that the plaintiff in Gertz had been limited in the damages he could recover because the speech at issue had involved a matter of public concern. It held that where a defendant's speech concerned a private individual and a matter of private concern, states could allow plaintiffs to recover presumed and punitive damages even absent a showing of actual malice. Id. at 761, 105 S.Ct. 2939.

¶ 47 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court held that when ruling on a summary judgment in any civil case in which the "clear and convincing" standard applies, the trial court must bear in mind "the actual quantum and quality of proof necessary to support liability." Because Liberty Lobby was an action for defamation by a public figure, the actual malice standard applied. Accordingly, the Court held that to survive summary judgment, the evidence presented by the plaintiff must be "of []sufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence." Id. Liberty Lobby's construction of Federal Rules of Civil Procedure 56 was applied to CR 56 by our state Supreme Court in Herron, 108 Wash.2d at 170, 736 P.2d 249.

¶ 48 In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), the Court held that the common law presumption that defamatory speech is false "cannot stand" even for a private party plaintiff, if he or she "seeks damages against a media defendant for speech of public concern." "In other words, the Court fashioned `a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.'" Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting Hepps, 475 U.S. at 776, 106 S.Ct. 1558).

¶ 49 In Milkovich, the Court held that a statement on matters of public concern "must be provable as false before there can be any liability under state defamation law," meaning that "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." 497 U.S. at 19-20, 110 S.Ct. 2695 (emphasis added).

¶ 50 All of these important limitations on defamation claims flow from our "profound national commitment," reflected in the First Amendment, "to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times, 376 U.S. at 270, 84 S.Ct. 710 (emphasis added). But in construing RCW 4.24.525 to carry out the legislature's stated objective of striking a balance that recognizes "the rights of persons to file lawsuits and to trial by jury,"3 we must remember that the constitutionalization of defamation law under the First Amendment has already altered the common law balance, making it more difficult for defamed plaintiffs to obtain redress: it has in many cases shifted the burden of proving falsity to the plaintiff; it has eliminated liability for a defendant's statements that do not have a provably false connotation; it has eliminated liability for true reports of matters reflected in judicial records of public prosecutions; it has required public officials and public figures to prove actual malice by clear and convincing evidence;4 for private figure plaintiffs, it has imposed the same burden of proof if they seek to recover presumed or punitive damages flowing from speech on a matter of public concern; and it has imposed heightened appellate review that focuses on the rights of defamation defendants.

The legislature's statement of purpose evinces the intent to accelerate the dismissal of doomed claims, not to impose additional burdens on a plaintiff's right to sue for defamation

¶ 51 The legislature's 2010 amendment to the anti-SLAPP statute cannot reasonably be read as intended to create an additional substantive hurdle for defamation plaintiffs. No concern is expressed in the preamble about existing elements or standards of proof. The purpose for the motion to strike procedure is explained as accelerating the dismissal of claims that are preordained to fail and sanctioning the plaintiffs who bring them.

¶ 52 The act's preamble contains multiple textual indications that the legislature was not concerned about plaintiffs who had viable defamation claims under existing law. Its findings state that its concern is with lawsuits that are "brought primarily to chill the valid exercise of ... constitutional rights." LAWS OF 2010, ch. 118, § 1(1)(a) (emphasis added). They state that problematic lawsuits "are typically dismissed as groundless or unconstitutional" — the problem being that such cases are not dismissed early enough. Id. at § 1(1)(b). The findings state that the citizens about whom the legislature is concerned are those who would "fear ... reprisal through abuse of the judicial process." Id. at § 1(1)(d) (emphasis added). They state that the act's purpose is to "[s]trike a balance" that recognizes "the rights of persons to file lawsuits and to trial by jury." Id. at § 1(2)(a).

¶ 53 The only intended change to defamation law expressed by the 2010 legislation is to spare defendants from pointless expense and inconvenience by allowing stays of discovery, expedited dismissal, and expedited appeal. The legislature's findings express concern that while groundless and unconstitutional claims are typically dismissed, it is "often not before the defendants are put to great expense, harassment, and interruption of their productive activities." Id. at § 1(1)(b). The findings state that a purpose of the act was to "[e]stablish an efficient, uniform, and comprehensive method for speedy adjudication of strategic lawsuits against public participation" and "[p]rovide for attorneys' fees, costs, and additional relief where appropriate." Id. at § 1(2)(b), (c).

¶ 54 It may be that for a defamation plaintiff (depending on our Supreme Court's ultimate clarification of Mark) the clear and convincing evidence standard by which she must establish a probability of prevailing to survive a motion to strike will prove to be a new substantive standard. But nothing about the 2010 legislation suggests that this was intentional on the part of the legislators. It appears to have been the view of at least some who participated in drafting the law and urging its enactment that Washington defamation plaintiffs already face this burden at the summary judgment stage under Mark; in their view, the only change wrought by the 2010 legislation was to accelerate the burden to the outset of litigation. See Bruce E.H. Johnson & Sarah K. Duran, A View from the First Amendment Trenches: Washington State's New Protections for Public Discourse and Democracy, 87 WASH. L.REV. 495, 497, 524 (2012) (recounting the authors' involvement with the legislation and observing that the requirement of clear and convincing proof of all elements of a plaintiff's case "merely codifie[s] the common law of defamation from Mark v. Seattle Times.").

¶ 55 If our Supreme Court hereafter decides that the burden imposed on defamation plaintiffs at the summary judgment stage by Mark has no basis in the First Amendment and is contrary to summary judgment practice in other cases, then RCW 4.24.525 does impose a substantive standard for purposes of surviving the motion to strike that is higher as to some elements, and as to some plaintiffs, than is the standard of proof at trial.5

¶ 56 Overall, the 2010 changes do not reflect a legislative intent to alter Washington's law of defamation. Most importantly, they do not reflect a legislative intent to adopt a meaning for "public concern" that is different from that term's longstanding use to identify speech that is entitled to heightened protection under the First Amendment.

"Public concern" is a longstanding term identifying speech entitled to heightened protection under the First Amendment — and a strikingly different concept than "public interest" under California's anti-SLAPP statute

¶ 57 The United States Supreme Court has "long recognized that not all speech is of equal First Amendment importance. It is speech on `matters of public concern' that is `at the heart of the First Amendment's protection." Dun & Bradstreet, 472 U.S. at 758-59, 105 S.Ct. 2939 (footnote omitted) (internal citation marks omitted) (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)).

¶ 58 The concept that some speech is entitled to heightened First Amendment protection has been recognized for at least 75 years. It was discussed in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), in which the Court reviewed the conviction of a striking union member arrested while picketing a mill, pursuant to an Alabama statute that outlawed loitering or picketing a business. In reversing the union member's conviction, the Court said,

Id. at 101-02, 60 S.Ct. 736 (footnotes omitted) (emphasis added).

¶ 59 Matters of public interest, public concern, and public affairs continued to be recognized as worthy of special protection in the United States Supreme Court's First Amendment jurisprudence in the 1960s, even if the basis for imposing the actual malice standard in a defamation case was a plaintiff's status as a public official or a public figure. E.g., Garrison, 379 U.S. at 74, 85 S.Ct. 209 (providing heightened protection for "discussion of public affairs"); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (discussing the great "public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment").

¶ 60 For several years in the early 1970s, a plurality of the United States Supreme Court even held that the fact that a publication dealt with an issue of "public concern" should be the basis for applying the First Amendment's actual malice standard and the requirement of proof by convincing clarity. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44-45, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), abrogated by Gertz, 418 U.S. at 343-44, 94 S.Ct. 2997. While the Court's 1974 decision in Gertz returned the defamation plaintiff's status as a public official, public figure, or private figure to primary importance, the fact that a publication did or did not deal with an issue of public concern continued to be relevant in many cases to its protected status, including public employment cases that have further developed factors to be considered in determining whether a communication "fall[s] under the rubric of matters of `public concern.'" Connick v. Myers, 461 U.S. 138, 148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983);6 accord Dun & Bradstreet, 472 U.S. at 756, 105 S.Ct. 2939 (distinguishing Gertz as involving expression on a matter of "undoubted public concern").

¶ 61 In explaining why "speech on `matters of public concern' ... is `at the heart of the First Amendment's protection,'" the Supreme Court in Dun & Bradstreet shed light on what it meant by speech on matters of public concern. 472 U.S. at 758-59, 105 S.Ct. 2939 (internal quotation marks omitted) (quoting Bellotti, 435 U.S. at 776, 98 S.Ct. 1407. It spoke of the First Amendment having been "`fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Dun & Bradstreet, 472 U.S. at 759, 105 S.Ct. 2939 (internal quotation marks omitted) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498) (1957)). It characterized such speech as "`[s]peech concerning public affairs'" that is "`more than self-expression; it is the essence of self-government.'" Id. (quoting Garrison, 379 U.S. at 74-75, 85 S.Ct. 209). In deciding whether the speech at issue involved a matter of public concern, the factors that it chose to apply were those identified in its 1983 decision in Connick, which it described as arising "[i]n a related context." Dun & Bradstreet, 472 U.S. at 761, 105 S.Ct. 2939.

¶ 62 In Connick, the Court observed that the Constitution's "special concern with threats to the right of citizens to participate in political affairs is no mystery." 461 U.S. at 145, 103 S.Ct. 1684. In addition to quoting Garrison's characterization of speech concerning public affairs as "`more that self-expression'" and "`the essence of self-government,'" id. (quoting Garrison, 379 U.S. at 74-75, 85 S.Ct. 209) and Roth's observation that the First Amendment "`was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes,'" id. (quoting Roth, 354 U.S. at 484, 77 S.Ct. 1304), it stated that the Court had "frequently reaffirmed that speech on public issues occupies the `highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." Id. (quoting Nat'l Ass'n for Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)).

¶ 63 To be sure, neither the United States Supreme Court nor our own Supreme Court has slavishly used the term "public concern" in discussing speech entitled to heightened protection. Both have spoken of "public interest" and "public affairs" somewhat interchangeably. But the clearly predominant label that federal courts and our own have applied in identifying that speech whose character warrants special protection under the First Amendment is speech on issues or matters of "public concern."

¶ 64 As the majority explains, our legislature's notable substitution of the "public concern" for the California statute's reference to "public interest" reflects an implicit rejection of the California term and the case law construing it. Majority at 12-13. Moreover, "`if the legislature uses a term well known to the common law, it is presumed that the legislature intended to mean what it was understood to mean at common law.'" Ralph v. Dep't of Natural Res., 182 Wn.2d 242, ___, 343 P.3d 342 (2014) (quoting N.Y. Life Ins. Co. v. Jones, 86 Wn.2d 44, 47, 541 P.2d 989 (1975)). The legislature's rejection of "public interest" in favor of "public concern" is a clear indication that the well-known First Amendment concept was intended. There is no need to resort to dictionary definitions.

¶ 65 The rubric "public concern" imparts a meaning very different from the meaning that California courts have ascribed to "public interest" as used in that state's anti-SLAPP statute.7 "Public interest" has been construed as untethered to any value of speech under the First Amendment. California courts have construed it to mean "any issue in which the public is interested." Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042, 72 Cal.Rptr.3d 210 (2008). In describing the exceptionally broad construction of "public interest" by California courts, the Ninth Circuit Court of Appeals has observed that the California Supreme Court

Hilton v. Hallmark Cards, 599 F.3d 894, 905 (9th Cir.2010). Washington commentators have agreed that California's is "one of the broadest anti-SLAPP statutes in the United States." Johnson & Duran, supra, at 523.

¶ 66 The decision in Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133, 122 Cal.Rptr.3d 264 (2011) illustrates just how far removed from a First Amendment valuedriven concept of "public concern" California's non-First Amendment value-driven concept of "public interest" can be. In that case, a casting synopsis was prepared for two characters, "Scott Tamkin" and "Melinda Tamkin" who would play parts in an upcoming episode of the television program CSI: Crime Scene Investigation. Scott and Melinda Tamkin were the names of a real-life married couple, both real estate agents. A writer for the CSI series met the Tamkins when she made an offer on a home that she later exercised her right to cancel.

¶ 67 The writer used the Tamkins' names as placeholders in drafting a script for an episode of CSI about a troubled fictional married couple who were both real estate professionals. The writer intended to substitute other names in the final script. The casting synopses were inadvertently released using the names "Scott Tamkin" and "Melinda Tamkin" and described the characters in defamatory ways bearing no relation to the real Mr. and Mrs. Tamkin. When Mr. Tamkin discovered the synopses on the Internet, he and his wife brought suit.

¶ 68 An anti-SLAPP motion to strike the Tamkins' complaint was granted and affirmed on appeal. The facts that the Tamkins were private figures, that they did nothing to cause their names to be included in a CSI script, and even that the script and casting synopses were admitted fiction, proved irrelevant to the appellate court's "public interest" analysis. Instead, it was enough that there was public interest "in the creative process underlying the production of the film" and that the defendants "showed that there was a public interest in the writing, casting, and broadcasting of CSI episode 913." Id. at 144, 122 Cal.Rptr.3d 264. The public interest in CSI episode 913 was shown "by the posting of the casting synopses on various Web sites and the ratings for the episode." Id. at 143, 122 Cal.Rptr.3d 264. In California, then, not only debatable fantasy but admitted fantasy (and about private plaintiffs) is a matter of "public interest," as long as it is interesting.

¶ 69 Such a broad meaning of "public concern" would introduce dissonance into RCW 4.24.525(2). Under the principle of noscitur a soccis, "`the meaning of words may be indicated or controlled by those with which they are associated.'" State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999) quoting Ball v. Stokely Foods, Inc., 37 Wn.2d 79, 87-88, 221 P.2d 832 (1950); accord State v. Budik, 173 Wn.2d 727, 735, 272 P.3d 816 (2012) (construing six criminal means delineated by statute as having common qualities, rather than as including an outlier). RCW 4.24.525(2)'s first three examples of actions "involving public participation and petition" are all statements in, in connection with, or encouraging or enlisting participation in a governmental proceeding. RCW 4.24.525(2)(a)-(c). Its fourth and fifth examples are statements made in a public forum or otherwise in connection with an issue of public concern. RCW 4.24.525(2)(d)-(e). If "public concern" is understood to mean the type of speech given heightened protection in First Amendment jurisprudence, then all five examples of actions "involving public participation and petition" are communications relevant to self-government or political and social change. On the other hand, if "public concern" is construed as having the same meaning given "public interest" by California courts, then RCW 4.24.525 identifies three related examples of political participation and two unrelated examples ("anything interesting") that would hardly be known by their associates.

¶ 70 Finally, the broad California construction would burden many plaintiffs' ability to hold a defendant responsible for an abuse of the defendant's right to speak freely, with no First Amendment justification for imposing that burden. This raises potential issues under article I, section 5 of the Washington Constitution.

The Washington Constitution provides that every speaker is responsible for an abuse of his right to freely speak, write and publish

¶ 71 The Washington Constitution provides at article I, section 5, that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." (Emphasis added). In a dissenting opinion in Beauharnais v. Ill., 343 U.S. 250, 292 & n. 6, 72 S.Ct. 725, 96 L.Ed. 919 (1952), Justice Jackson, having surveyed state constitutions, identified more than 40 (including Washington's) that, "while extending broad protections to speech and press, reserve a responsibility for their abuse and implicitly or explicitly recognize validity of criminal libel laws." Constitutional protections of speech of this sort have been referred to as "liberty and responsibility" clauses. Ex Parte Tucci, 859 S.W.2d 1, 22-23 (Tex.1993) (Phillips, J., concurring); Am. Bush v. City of South Salt Lake, 2006 UT 40, 140 P.3d 1235, 1241. "Historical evidence indicates that the phrase imposing responsibility for the `abuse' of the right was inserted to preserve civil liability for defamation." 1 Jennifer Friesen, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES § 5.02[3][e] at 5-10 (4th ed.2006); accord Wheeler v. Green, 286 Or. 99, 118, 593 P.2d 777 (1979) (holding that defamatory statements are recognized as an abuse of the right of free expression for which a person is to be held responsible under article I, section 8 of the Oregon Constitution); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 117 (Tex.2000) (holding that "the Texas Constitution expressly guarantees the right to bring reputational torts"): Telnikoff v. Matusevitch, 347 Md. 561, 614, 702 A.2d 230 (1997) (Chasanow, J., dissenting) (characterizing article 40 of the Maryland Declaration of Rights as containing "a safeguard against defamation" not found in the United States Constitution); Am. Bush, 140 P.3d at 1244 (characterizing it as "undoubtedly true" that the phrase "responsible for the abuse" in Utah's liberty and responsibility clause was intended to preserve liability for defamation). But cf. Werner v. S. Cal. Associated Newspapers, 35 Cal.2d 121, 124-25, 216 P.2d 825 (1950) (construing the abuse language as merely making clear that the right of free speech does not guarantee immunity from liability).

¶ 72 Of course, we avoid deciding constitutional questions where a case may be fairly resolved on other grounds. Cmty. Telecable of Seattle, Inc. v. City of Seattle, Dep't of Exec. Admin., 164 Wn.2d 35, 41, 186 P.3d 1032 (2008). A narrow, First Amendment-based meaning of "public concern" is most likely to avoid a constitutional challenge under article I, section 5 of the Washington Constitution, Nevertheless, because I agree with the majority that there are ample non-constitutional reasons why "public concern" should be understood to have its well-settled meaning, it is premature to analyze the meaning of the "responsible for the abuse" language in that section of our constitution.

FEARING, J. (dissenting).

INTRODUCTION

¶ 73 This appeal asks this court to interpret the expression "public concern" found in the 2010 Washington anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, RCW 4.24.525. We need not announce a comprehensive definition for the statutory phrase, but only determine whether vitriolic blogging of James Ryan targeting Spokane Civic Theatre Executive Artistic Director Yvonne Johnson fits within the term.

¶ 74 The majority holds that James Ryan's "blogging was primarily for personal concern, not public concern." Majority at 1. I do not know if the majority rules that Ryan's blogging is of no public concern or is of public concern, but motivated more by personal concern. Regardless, I dissent, because the blogging contained elements of public concern. More importantly, the anti-SLAPP statute does not authorize this court or the trial court to weigh the motivation of James Ryan. Personal gain or vengeance is not relevant in determining whether speech is of public concern. Since Ryan's comments about Yvonne Johnson were of public concern and since Johnson fails to present a prima facie case of liability, I dissent.

FACTS

¶ 75 I try not to repeat all facts outlined by the majority, but repeat some for emphasis. The Spokane Civic Theatre is a not-for-profit, performing arts theatre located in Spokane. The Civic Theatre is a private foundation receiving support from private donors and operating with an endowment — the Spokane Civic Theatre Endowment Fund. A Wikipedia entry described the Civic Theatre as "one of the oldest community theatres in the country ... [and] a point of pride for the city [of Spokane]." Clerk's Papers (CP) at 55.

¶ 76 The Spokane Civic Theatre's website declares that "the tradition of public education has continued throughout our history." CP at 27. As such, the theatre serves as an educational resource for local high school and college drama departments. At least one thousand volunteers assist the Civic Theatre. The Theatre's website further reads: "In addition to volunteering their time, the Spokane Community has given incredible amounts in the form of donations that support us in our mission to provide and support theatre excellence." CP at 27.

¶ 77 In 2005, the Spokane Civic Theatre hired plaintiff Yvonne Johnson as its executive artistic director. On January 27, 2005, the Spokesman-Review, Spokane's major newspaper, published an article introducing Johnson to the community.

¶ 78 On August 29, 2010, the Spokesman-Review published an article praising Yvonne Johnson for helping the Spokane Civic Theatre thrive despite the brutal economy. The article quoted one local director and performer: "`I think she's been a gift to the community. She has helped the Spokane Civic Theatre regain its standards as a glorious and reliable theater.'" CP at 51.

¶ 79 Yvonne Johnson maintained her own website, www.yvonneakjohnson.com. The website promoted her career. The website described, in part, her duties as executive artistic director at the Spokane Civic Theatre. The duties included assisting the Theatre's business manager and director of development on obtaining grants, cultivating donor relations, administering personnel policies, ensuring compliance with state and federal regulations, representing the Theatre to the community, and maintaining contact with state and national arts organizations.

¶ 80 As the executive artistic director, Yvonne Johnson supervised and evaluated Civic Theatre employees and administered grievance and termination procedures. On August 19, 2010, Johnson hired defendant James Ryan as music director for the Theatre. Ryan desired employment with a community theatre like the Spokane Civic Theatre, as opposed to a professional theatre where talent moves from place to place to further careers. Ryan believed that working for the Spokane Civic Theatre would allow his family a better connection to its home community.

¶ 81 Two months after the hiring, Yvonne Johnson terminated James Ryan's employment for cause at the direction of the Civic Theatre's board. Yvonne Johnson wrote a termination letter to Ryan. Because Ryan claims the letter confirms the "public" nature of the Civic Theatre, I quote much of the letter here:

CP at 83-85 (underlining in original) (emphasis added).

¶ 82 On October 24, 2010, James Ryan began posting negative statements about Yvonne Johnson on the Internet via a blog entitled "thetyrannyofyvonne." CP at 99. On April 29, 2011, Ryan began publishing adverse comments about Yvonne Johnson on the Internet via the domain names of "spokanecivictheater.org" and "spokanecivictheatre.org." CP at 99. James Ryan operated the blog "civicdoody.com." CP at 80. The blog could also be found at "thetyrannyofyvonne.blogspot.com." CP at 80. "Spokanecivictheater.org" and "spokanecivictheatre.org" redirected to "civicdoody.com." CP at 81.

¶ 83 The Spokane Civic Theatre filed a claim, with an Internet domain organization, against James Ryan, for use of his confusing website addresses. Ryan prevailed and kept his domain names.

¶ 84 Because we must determine if James Ryan's speech on his Internet blogs implicate a public concern, I quote much of the language from the postings. On July 5, 2011, Ryan posted the following blog that announced his prevailing in his claim for unemployment compensation and accused Yvonne Johnson of providing the Employment Security Department with false information:

CP at 106-07.

¶ 85 In reaction to the July 5, 2011 post, Yvonne Johnson protested that she made no false statements to the Employment Security Department and that James Ryan knew she made no false statements. Spokane Civic Theatre Managing Director James Humes, not Yvonne Johnson, signed the Theatre's response to Ryan's application for unemployment benefits. Nevertheless, Johnson's termination letter was attached to the Theatre's response and represented as the reason for Ryan's firing.

¶ 86 In a declaration in opposition to James Ryan's anti-SLAPP motion, Yvonne Johnson testified that character, integrity and reputation are of the utmost importance to her position as executive artistic director of the Spokane Civic Theatre. The characteristics dictate her length of employment with the Civic Theatre and whether she can obtain similar employment elsewhere. Johnson expects to always work in the theater field.

¶ 87 Yvonne Johnson believes James Ryan seeks to prevent her from gaining employment in the theater world. In a November 14, 2011 blog Ryan wrote:

CP at 108 (bold and underlining in original) (emphasis added).

¶ 88 Yvonne Johnson characterizes James Ryan's blog attacks as a means to coerce a payment from the Spokane Civic Theatre. In the same February 8, 2013 blog, Ryan discussed a summary judgment ruling against him in a lawsuit he brought against the Civic Theatre for wrongful discharge from employment. Ryan wrote:

CP at 100.

¶ 89 The blog also stated:

CP at 100.

¶ 90 Yvonne Johnson denied intimidating witnesses, so James Ryan filed a declaration in this suit identifying the source of his information about intimidation. Before posting the February 8, 2013 blog, Troy Nickerson, a Spokane theater director, informed Ryan that Michelle Holland claimed she had been intimidated by Johnson. Ryan had identified Holland as a witness in his lawsuit against the Civic Theatre for wrongful discharge.

¶ 91 Michelle Holland, a former employee of the Spokane Civic Theatre, signed a declaration in support of James Ryan's anti-SLAPP motion. Holland knew that parties exchanged information in discovery in Ryan's lawsuit against the Theatre and that Ryan identified her as a witness in discovery. Yvonne Johnson approached Holland after this exchange of witnesses. Although Holland could not recall Johnson's statements verbatim, Johnson told Holland something along the lines of "`I don't know why you

CP at 100.

¶ 92 The blog also stated:

CP at 100.

¶ 93 Yvonne Johnson denied intimidating witnesses, so James Ryan filed a declaration in this suit identifying the source of his information about intimidation. Before posting the February 8, 2013 blog, Troy Nickerson, a Spokane theater director, informed Ryan that Michelle Holland claimed she had been intimidated by Johnson. Ryan had identified Holland as a witness in his lawsuit against the Civic Theatre for wrongful discharge.

¶ 94 Michelle Holland, a former employee of the Spokane Civic Theatre, signed a declaration in support of James Ryan's anti-SLAPP motion. Holland knew that parties exchanged information in discovery in Ryan's lawsuit against the Theatre and that Ryan identified her as a witness in discovery. Yvonne Johnson approached Holland after this exchange of witnesses. Although Holland could not recall Johnson's statements verbatim, Johnson told Holland something along the lines of "`I don't know why you don't like me. I know several personal things about you that I do not go around telling people.'" CP at 130. Johnson then proceeded to list private personal things about Holland. Holland concluded that Johnson meant to intimidate her.

¶ 95 In a March 20, 2013, blog on Civic Doody, James Ryan wrote:

CP at 7.

¶ 96 According to James Ryan, he learned, after his termination from employment from the Spokane Civic Theatre, of a great breadth and depth of continuing frustration with leadership of the Theatre. He learned of widespread opinion that Yvonne Johnson's autocratic leadership style harmed both the volunteers at the Civic Theatre and the Spokane community as a whole.

¶ 97 James Ryan claims continuing involvement with Spokane area arts and entertainment. Since his termination from the Civic Theatre, Ryan has worked at all similar theaters in the region and has donated his services for fundraisers.

¶ 98 James Ryan insists that he only publishes, on his blogs, facts that he witnessed or confirmed through investigation and research. Ryan claims he does not publish rumors. He believes all factual statements on his blog to be true. As of May 24, 2013, James Ryan's blog had received over 36,000 hits.

PROCEDURE

¶ 99 Yvonne Johnson filed suit against James Ryan for intentional interference with business expectancy and defamation. Johnson sought damages and injunctive relief.

¶ 100 James Ryan brought a motion, pursuant to RCW 4.24.525, the anti-SLAPP statute, asking that the court strike Yvonne Johnson's complaint, award him $10,000 in damages under the statute, and award him reasonable attorney fees and costs. In his anti-SLAPP motion, Ryan argued that his online postings intended to provide a public forum for discussion and dissemination of commentary, complaints, and information related to the Spokane Civic Theatre. He asserted that his online cyber-conduct addressed matters of public concern as evidenced by the amount of Internet traffic to his blogs.

¶ 101 The Spokane County Superior Court granted James Ryan's anti-SLAPP motion after concluding that Ryan's online blogging activity addressed a matter of public concern. The trial court also concluded that Yvonne Johnson did not show a probability that she would prevail on either her tortious interference with business expectancy or defamation claims.

¶ 102 On appeal, Yvonne Johnson contends the trial court erroneously classified Ryan's statements as statements of "public concern" for purposes of the anti-SLAPP statute. Johnson characterizes Ryan's attacks on her as a "wholly private" employment dispute between a disgruntled ex-employee and his supervisor. In so arguing, Johnson emphasizes blogs, in which Ryan discusses his goal to obtain vengeance and money from the Spokane Civic Theatre.

LAW AND ANALYSIS

Washington Anti-SLAPP Statute

¶ 103 The majority has outlined the provisions of and background to the 2010 Act Limiting Strategic Lawsuits Against Public Participation. LAWS OF 2010, ch. 118, § 4. The legislature directed the courts to liberally interpret the Act. Akrie v. Grant, 178 Wn.App. 506, 315 P.3d 567 (2013), review granted, 180 Wn.2d 1008, 325 P.3d 913 (2014). "This act shall be applied, and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts." LAWS OF 2010, ch. 118, § 3.

¶ 104 Because of its length, RCW 4.24.525, the anti-SLAPP statute, requires a scorecard to review. In order to understand the substance of the statute, one must refer to definitions of words found at the statute's beginning. RCW 4.24.525(4)(a) allows a party to bring a special motion to strike a claim that is based on an "action involving public participation and petition." Section 2 identifies the communications protected by the statute, most of which communications are directed to the government. Nevertheless, the statute also protects free speech in other contexts. The statute reads, in relevant part:

RCW 4.24.525 (emphasis added).

¶ 105 Note that the statute uses "in connection with an issue of public concern" in two settings: (1) when the defendant renders a statement on an issue of public concern in a place open to the public or in a public forum, (subsection (d)), and; (2) when the defendant engages in conduct in connection with an issue of public concern while exercising his constitutional right of free speech, (subsection (e)). The majority and I focus on subsection (d).

¶ 106 The majority concedes that James Ryan wrote the subject statements on the Internet and that the Internet is a public forum. ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 113 Cal.Rptr.2d 625 (2001). The crux of the appeal therefore becomes whether Ryan uttered a statement "in connection with an issue of public concern." This court must wrestle with the amorphous clause "in connection with an issue of public concern" and decide whether James Ryan's computer-generated fulminating falls within the scope of the fluid phrase. Because of the flexibility of the critical term, I extensively explore definitions, Washington case law, and foreign law to seek an answer.

¶ 107 "The court's duty in statutory interpretation is to discern and implement the legislature's intent." Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012). To determine legislative intent, this court looks first to the language of the statute. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995). Both the majority and I find no help in the language alone of the statute to solve this appeal. Thus, look to the liberal construction rule, dictionary definitions, and prior case law in resolving the question on appeal.

¶ 108 No case addresses whether portions of a defendant's targeted statement or statements involve a public concern, while other portions of the statements do not. In other words, courts do not separate the chaff from the wheat. Winning and losing is an all or nothing proposition.

In Connection With

¶ 109 All anti-SLAPP decisions omit analyzing the prepositional phrase "in connection with" that precedes the expression "issue of public concern" in RCW 4.24.525. Merriam-Webster's Third New International Dictionary variously defines the idiomatic phrase as the act of connecting, a casual or logical relation or sequence, contextual relationship, or association. Use of the phrase may suggest that speech protected by the anti-SLAPP statute need not directly be of public concern, as long as there is some relevant connection between the speech and a subject of public concern.

¶ 110 One California decision mentions that shielded speech need only have "some attributes" of "public interest." Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132, 2 Cal.Rptr.3d 385 (2003). The United States Supreme Court and our court, in First Amendment cases, have noted that even the slightest tinge of "public concern" is sufficient to satisfy the element of "public concern." Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Binkley v. City of Tacoma, 114 Wn.2d 373, 383 n. 8, 787 P.2d 1366 (1990).

¶ 111 This court's majority contradicts the precedents of Connick and Binkley when writing; "In Dillon [v. Seattle Deposition Reporters, LLC, 179 Wn.App. 41, 316 P.3d 1119, review granted, 180 Wn.2d 1009, 325 P.3d 913 (2014)], we find further support for the proposition that speech that only tangentially implicates a public issue is not a matter of public concern." Majority at 18. Our recent decision in Dillon does not support this proposition. The majority cites the Dillon passage: "`[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.'" Dillon, 179 Wash.App. at 72, 316 P.3d 1119 (quoting Martinez v. Metabolife Int'l, Inc., 113 Cal.App.4th 181, 188, 6 Cal.Rptr.3d 494 (2003)). The majority fails to note that Dillon borrowed this quote from the California decision Martinez. More importantly, the "gravamen" to which this passage refers is the gist of the legal claims, allegations, and causes of action of the plaintiff, not the gist of the speech for which the defendant is sued. In Dillon, the gravamen of the plaintiff's complaint was the defendants' recording of a conversation without plaintiff's permission rather than the content of speech.

Dictionary Definitions of Public Concern

¶ 112 The anti-SLAPP statute does not define what constitutes an "issue of public concern." Undefined statutory terms must be given their usual and ordinary meaning. Dominick v. Christensen, 87 Wn.2d 25, 27, 548 P.2d 541 (1976); Nationwide Ins. v. Williams, 71 Wn.App. 336, 342, 858 P.2d 516 (1993).

¶ 113 Black's Law Dictionary does not define either "public concern" or "concern." Black's defines "public interest," in relevant part, as: "Something in which the public as a whole has a stake." BLACK'S LAW DICTIONARY 1425 (10th ed.2014). The same dictionary defines "interest," in part as "[t]he object of any human desire." BLACK'S, supra, at 934. A lay dictionary defines concern, in part, as a marked interest or regard and a matter for consideration.

¶ 114 These dictionary definitions provide little assistance in answering our question other than to suggest that the public as a whole must be interested in the subject matter. I assume not every member of the public need be interested in a subject of public concern, since no topic captures the attention or concern of every person. The interest of a significant number of citizens is sufficient. The definitions do not distinguish between the public holding a legitimate interest in the issue or if a prurient or sensational interest suffices for protection.

¶ 115 I include in the list of dictionary definitions the phrase "public interest." The dictionary definitions suggest that the phrases "public concern" and "public interest" are synonymous. I will analyze this implication later.

Washington Case Law on Public Concern

¶ 116 Division One of this court, in several current decisions, has boldly gone before us in addressing the meaning of "public concern" under Washington's anti-SLAPP statute. The prior decisions give both a broad definition and then explore factors to consider when deciding whether speech contains matters of public concern. Under the broad definition, speech deals with matters of "public concern" when it can "`be fairly considered as relating to any matter of political, social, or other concern to the community.'" Spratt v. Toft, 180 Wn.App. 620, 632, 324 P.3d 707 (2014); Davis v. Cox, 180 Wn.App. 514, 531, 325 P.3d 255 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 1216, 179 L.Ed.2d 172 (2011)). Use of factors may arise from the difficulty in forming a comprehensive and workable definition of "public concern." The term "public concern" does not lend itself to a precise, all-encompassing definition. Alaska Structures, Inc. v. Hedlund, 180 Wn.App. 591, 599, 323 P.3d 1082 (2014) (quoting Stutzman v. Armstrong, No. 2:13-CV-00116, 2013 WL 4853333, at *5, 2013 U.S. Dist. LEXIS 129204, at *16 (E.D.Cal. Sept. 10, 2013)). "`The boundaries of the public concern test are not well defined.'" Snyder, 131 S.Ct. at 1216 (quoting City of San Diego v. Roe, 543 U.S. 77, 83, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004)). Because the legislature's intent in adopting RCW 4.24.525 was to address lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, this court looks to First Amendment cases to aid in its interpretation. Davis, 180 Wash.App. at 530, 325 P.3d 255; City of Seattle v. Egan, 179 Wn.App. 333, 338, 317 P.3d 568 (2014) (quoting LAWS OF 2010, ch. 118, § 1(1)(a)).

¶ 117 Alaska Structures v. Hedlund, 180 Wn.App. 591, 323 P.3d 1082 (2014) presents the fullest analysis of the phrase "public concern." The Hedlund court employed the California decision, Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO, 105 Cal.App.4th 913, 924, 130 Cal.Rptr.2d 81 (2003), for outlining a series of categories for determining whether a statement implicates an issue of public interest and falls within the protection of the anti-SLAPP statute. Hedlund, 180 Wash. App. at 599-600, 323 P.3d 1082. The first category comprises instances when the statement was of "a person or entity in the public eye." The second category comprises circumstances when the statement "involved conduct that could affect a large number of people beyond the direct participants." A third category comprises situations when the statement entailed "a topic of widespread, public interest."

¶ 118 The Hedlund court also quoted from Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132, 2 Cal.Rptr.3d 385 (2003), when sketching relevant factors for determining an issue of public concern or public interest. Public interest does not equate with mere curiosity. A matter of public interest should be something of concern to a substantial number of people. A matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. There should be some degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest is not sufficient. The focus of the speaker's conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Those charged with defamation cannot make their target into a public figure. Alaska Structures, Inc. v. Hedlund, 180 Wash.App. at 602-03, 323 P.3d 1082.

¶ 119 In a defamation case, this court explored the meaning of "public concern" in the context of a news story about a lawsuit brought by Microsoft for software piracy.

Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., 114 Wn.App. 371, 393-94, 57 P.3d 1178 (2002) (citation omitted). The decision illustrates that a private dispute and a lawsuit may be of public concern.

¶ 120 The majority relies on Tyner v. Department of Social & Health Services (DSHS), 137 Wn.App. 545, 154 P.3d 920 (2007) for concluding that James Ryan's speech was not in connection with an issue of public concern. DSHS discharged Paula Tyner as part of a reduction in force, but subsequently reassigned her to a different position. She sued claiming DSHS reassigned her in retaliation for her exercising free speech rights. Tyner lacks a correlation to anti-SLAPP law, because of the unique test employed when determining whether the government violates an employee's free speech rights when discharging or demoting a government employee after the employee criticizes the employer. The court balances the employee's interest with the interest of the government in promoting the efficiency of the public services. The government has legitimate interests in regulating the speech of its employees that differ significantly from its interest in regulating the speech of people generally. Binkley v. City of Tacoma, 114 Wn.2d 373, 381-82, 787 P.2d 1366 (1990).

¶ 121 More importantly, the Tyner court noted that speech on the job generally is not a matter of public concern because the speech is not disseminated to the public. Paula Tyner's communication occurred in the work setting. The court held that "a comment addressed solely to an internal audience without any intent to bring it to the public's attention does not constitute a matter of public concern." 137 Wash.App. at 558, 154 P.3d 920. Our majority ignores this holding. James Ryan wrote his blog after being discharged from employment and he disseminated his comments to the Spokane public, if not the universal public. According to Ryan's unchallenged testimony his blogs received over 36,000 hits. James Ryan was no longer employed when he posted his blogs.

¶ 122 The majority discusses at length White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997). Judy White, an employee at a state nursing home, alleged the State transferred her to a new position, in violation of her First Amendment rights, in retaliation for reporting patient abuse. The court held: "The fact that White may have had a personal interest in reporting the incident does not diminish the concern the public would have in this matter." 131 Wash.2d at 13, 929 P.2d 396. The court held White's speech to be a matter of public concern. The court dismissed the suit, however, because White failed to establish a causal connection between her transfer and her protected speech. The White decision supports a ruling in favor of James Ryan.

¶ 123 We should apply the anti-SLAPP statute liberally and provide protection to a speaker if his speech has the slightest shade of public concern. Even ignoring these two guidelines, the factors and categories out-lined in Hedlund compel a conclusion that James Ryan's speech, for which Yvonne Johnson sues, embraces an issue of public concern.

¶ 124 When ruling that James Ryan's writings lie outside the protection of Washington's anti-SLAPP statute, the majority cherry picks a few sentences of Ryan's prose, omits a review of the complete blogs, and ignores the backgrounds of the Spokane Civic Theatre and Yvonne Johnson. Spokane's leading newspaper quoted Johnson as a gift to the community, who enabled the Spokane Civic Theatre to regain its standards as a glorious and reliable area theater. Johnson was the Civic Theatre's face to the Spokane public and other arts organizations. The Civic Theatre fired Ryan because he did not fulfill "high public standards charged to representatives of the Theatre." CP at 84. According to Yvonne Johnson, Ryan's actions were "public actions" that must satisfy the Theatre's diverse community. Because the Spokane Civic Theatre depends on the goodwill of the greater Spokane metropolitan area, Ryan's conduct exposed the Theatre to "public scandal" and oblivion. According to Johnson, the Civic Theatre is a vanguard of the dramatic arts in Spokane that must push the boundaries of creativity and expression for the betterment of the community. Art is considered a matter of public concern. United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537, 2564, 183 L.Ed.2d 574 (2012); State v. Crawley, 819 N.W.2d 94, 124 (Minn.2012).

¶ 125 The following is a paraphrased list of comments uttered by James Ryan in his blogs:

¶ 126 In one or two paragraphs of his several blogs, James Ryan discusses his desire receive vindication and compensation. The overwhelming discussion, however, is of mismanagement of the Spokane Civic Theatre by Yvonne Johnson and its board of directors. The management of the Theatre impacts many Inland Empirites, not only James Ryan and Yvonne Johnson. At least one thousand volunteers and donors assist the Civic Theatre. More attend Theatre productions.

¶ 127 The public should know if Yvonne Johnson mismanages the Spokane Civic Theatre. The public should also know if Johnson is wasting money on litigation, lying to government entities, and intimidating a witness. James Ryan is engaged in a controversy with Yvonne Johnson, but his blogs have not sought ammunition to assist in the litigation. Johnson and the Spokane Civic Theatre were already in the public eye before they fired James Ryan.

¶ 128 A consideration of the relief sought by the party asserting the cause of action can be a determinative factor when resolving the question of whether speech is of a public concern for purposes of the anti-SLAPP statute. Davis v. Cox, 180 Wn.App. 514, 523, 325 P.3d 255 (2014). A prayer for injunctive relief to preclude the defendant from speaking is a factor favoring granting an anti-SLAPP motion to strike. Davis, 180 Wash. App. at 523, 325 P.3d 255. Yvonne Johnson seeks injunctive relief against James Ryan for continuing to post blogs. She seeks a prior restraint on James Ryan's First Amendment rights.

California Case Law on Public Concern

¶ 129 Washington decisions alone compel a ruling in favor of James Ryan. Nevertheless, I believe California anti-SLAPP decisions bolster the conclusion that Ryan uttered speech in connection with an issue of public concern. Therefore, I address whether a Washington court may rely on California decisions.

¶ 130 The majority emphasizes that the California anti-SLAPP statute uses the phrase "public interest," whereas the Washington statute employs the term "public concern." In turn, the majority applies the principle of statutory construction that, if our legislature modifies a provision of the borrowed statute, the legislature rejects the case law decided under the contrary language in the borrowed statute. The majority, however, fails to explain the difference between "public concern" and "public interest." The majority withholds enlightenment as to the practical implications between distinguishing between a subject of public interest and a topic of public concern. The majority provides no example as to a different outcome depending which phrase is used, nor does it address whether there would be a different outcome in this appeal under the California statute.

¶ 131 The majority, upon noting the difference in the wording between the Washington and California statutes, implies that Washington courts should not rely on California decisions because the California statutory language covers more subjects and affords the speaker greater protection than Washington's statutory language. Nevertheless, we do not know why the Washington Legislature changed the statutory language from "public interest" to "public concern." The Act's legislative history reveals nothing to explain this deviation from the California statute. Tom Wyrwich, A Cure for a "Public Concern": Washington's New Anti-SLAPP Law, 86 WASH. L. REV. 663, 684-85 (2011). We do not know if the Washington Legislature concluded that the California anti-SLAPP statute was too broad. For all we know, the opposite is true — that the Washington Legislature thought "public concern" covered more subjects and provided the speaker greater protection than California's phrase of "public interest." If this is true, California decisions, to the extent they protect the defendants' speech, are helpful because the Washington statute covers at least the subjects covered by the California statute. Since the Washington Legislature wanted the Washington anti-SLAPP statute applied liberally, we should conclude that the Washington statute provides the same protections, if not more protection, than the California statute.

¶ 132 A possible explanation for the difference between the California and Washington statutes is the Washington Legislature's desire for courts to employ First Amendment decisions when construing the anti-SLAPP statute because First Amendment decisions use the expression "public concern." Wyrwich, supra, at 685. This explanation falls short, however, since California cases also look to First Amendment cases when applying its anti-SLAPP statute. Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132, 2 Cal.Rptr.3d 385 (2003).

¶ 133 Contrary to the majority's position, Washington courts look to California decisions in answering questions posed by the anti-SLAPP statute. Spratt v. Toft, 180 Wn.App. 620, 630-31, 324 P.3d 707 (2014); Alaska Structures, Inc. v. Hedlund, 180 Wn.App. 591, 602-03, 323 P.3d 1082 (2014). Washington courts have never held that California decisions addressing the nature of "public interest" are inapposite when addressing the nature of "public concern." To the contrary, the Hedlund court cited and used fifteen California cases when exploring the extent of "an issue of public concern." Alaska Structures, Inc. v. Hedlund, 180 Wash.App. at 599-603, 323 P.3d 1082. Our majority even includes a quote from the California decision of Weinberg in construing the meaning of "public concern," despite earlier proclaiming to disown California case law. Majority at 13-14.

¶ 134 The majority also uses California law when it erroneously claims that speech that only tangentially implicates a public issue is not a matter of public concern. Majority at 18. The majority cites Dillon v. Seattle Deposition Reporters, 179 Wash.App. at 72, 316 P.3d 1119 (2014) for the misplaced proposition, but the Dillon language comes from Martinez v. Metabolife International, Inc., 113 Cal.App.4th 181, 188, 6 Cal.Rptr.3d 494 (2003). The majority cites California decisions when California law suits its purposes.

¶ 135 In another setting, the Washington Supreme Court used the terms public "interest" and "concern" interchangeably. See Taskett v. KING Broadcasting Co., 86 Wn.2d 439, 440, 442, 444, 546 P.2d 81 (1976). In her briefing, Yvonne Johnson relies on California cases when arguing what constitutes an issue of "public concern." In short, we should look to California decisions when deciding if a defendant's statements deserve protection under the Washington anti-SLAPP statute. Although the Washington statute and case law is sufficient to hold James Ryan's speech of public concern, California cases bolster this conclusion.

¶ 136 Based on the three categories found in Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO, 105 Cal.App.4th 913, 130 Cal.Rptr.2d 81 (2003), California cases hold that consumer information posted on web sites concern issues of public interest. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 262 (9th Cir.2013) (applying California law); Wong v. Tai Jing, 189 Cal.App.4th 1354, 117 Cal.Rptr.3d 747 (2010); Gilbert v. Sykes, 147 Cal.App.4th 13, 23, 53 Cal.Rptr.3d 752 (2007). In Gilbert, the court held a patient's statements about a plastic surgeon were of public interest because the information provided was material to potential consumers "contemplating plastic surgery." In Wong, a review on Yelp.com criticizing dental services and discussing the use of silver amalgam, raised issues of public interest. The Ninth Circuit Court of Appeals, in Makaeff, held that statements warning consumers of fraudulent or deceptive business practices constitute a topic of widespread public interest, so long as they are provided in the context of information helpful to consumers.

¶ 137 Although theatergoers may not be characterized as consumers, they are customers or patrons of the arts. Providing them information on the management of the Spokane Civic Theatre should be a matter of public concern.

¶ 138 Other California decisions stand for additional propositions. Even purely private speech may be covered by an anti-SLAPP statute if it concerns a public issue. Averill v. Superior Court, 42 Cal.App.4th 1170, 1174, 50 Cal.Rptr.2d 62 (1996). The creative process underlying the production of arts and entertainment is a matter of public concern. Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133, 143-44, 122 Cal.Rptr.3d 264 (2011). Unflattering speech by a former employee about working conditions at a private company is an issue of public interest when the company and its founder spent a great deal of money and effort to promote the business. Nygard, Inc. v. Timo Uusi-Kerttula, 159 Cal.App.4th 1027, 1033, 1042, 72 Cal.Rptr.3d 210 (2008). Unflattering speech on a "Rants and Raves" website by a former employee about a private bank's management decisions was a public issue when the bank actively promoted itself as a "community partner" and its chief executive officer had been the subject of media attention. Summit Bank v. Rogers, 206 Cal.App.4th 669, 694, 142 Cal.Rptr.3d 40 (2012). Under the California anti-SLAPP statute, statements held to involve issues of public interest include criticism of the management of a publicly traded company. ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1007-08, 113 Cal.Rptr.2d 625 (2001); Global Telemedia Int'l, Inc. v. Doe, 132 F.Supp.2d 1261 (C.D.Cal.2001). Examples of matters of public interest may include activities of private entities that may impact the lives of many individuals. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 650, 49 Cal.Rptr.2d 620 (1996).

¶ 139 A California court also held criticism of the manager of a homeowners association to be a matter of public interest. Damon v. Ocean Hills Journalism Club, 85 Cal.App.4th 468, 479, 102 Cal.Rptr.2d 205 (2000). In the latter case, the management and welfare of a large residential community was a matter of public interest. The Damon court noted the mandate to broadly construe the anti-SLAPP statute. The anti-SLAPP statute applies regardless of whether the "primary purpose" of the lawsuit is to vindicate the damage done to plaintiff's reputation and not to interfere with the defendant's exercise of his free speech rights.

¶ 140 Another case helpful to James Ryan is Averill v. Superior Court, 42 Cal.App.4th 1170, 50 Cal.Rptr.2d 62 (1996). A charitable organization sued Averill after she made allegedly slanderous remarks about the organization to her employer. The employer was supporting the organization's home for battered women, which Averill publicly opposed. Even though Averill's remarks were made in a private setting, the court held the suit subject to the anti-SLAPP statute. The court stressed the fact that, while the remarks were private, the subject of the remarks — the home for battered women — was a topic of considerable public controversy.

¶ 141 Yvonne Johnson emphasizes that the Spokane Civic Theatre is not a government entity and she argues that she is not a public figure. Johnson ignores, however, that the Theatre operates by the help of one thousand volunteers and with donations from throughout the Spokane community. Thus, thousands of Spokanites hold concern about the operation of the Spokane Civic Theatre. Averill stands for the proposition that a non-profit organization can be a matter of public interest and criticism of the organization can be protected by an anti-SLAPP statute.

Motivation of James Ryan

¶ 142 Yvonne Johnson characterizes James Ryan's comments as an attempt to coerce, through slander, a monetary settlement from the Spokane Civic Theatre or herself. Based on this characterization, Johnson argues that the anti-SLAPP statute does not apply because Ryan seeks to further only personal, financial interests. She contends a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant, citing Dillon v. Seattle Deposition Reporters, LLC, 179 Wn.App. 41, 71, 316 P.3d 1119, review granted, 180 Wn.2d 1009, 325 P.3d 913 (2014).

¶ 143 The majority accepts Yvonne Johnson's portrayal of James Ryan's speech. The majority summarizes James Ryan's speech as: Johnson wrongfully terminated me; she caused me financial damages and embarrassment; I will cause her financial damages and embarrassment. The majority characterizes these thoughts as the "dominant themes" of Ryan's writings. I am nonplused as to how the majority assesses the "dominant theme" of James Ryan's cyber chatter. A reading of the blogs as a whole shows one of the dominant themes to be the mismanagement of the Spokane Civic Theatre. The statute requires a "connection" to public concern not that this concern be the primary motive. Ryan's repeated discussion of the Theatre's mismanagement provides this connection.

¶ 144 I recognize portions of James Ryan's blogs indirectly seek a financial settlement. I agree with the majority that James Ryan is obsessed with vengeance. I concede that Ryan's attacks on Johnson are unfair. For these reasons, James Ryan is not a sympathetic defendant, but an undesirable defendant needs the protection afforded by the anti-SLAPP statute more than does an attractive defendant.

¶ 145 Even if coercion and vengeance were the prime motivation of James Ryan, the anti-SLAPP statute does not exclude speech from its protection if the speaker seeks to gain money, as long as the content of the speech is a matter of public concern. A fixation with revenge does not automatically close the door to a determination that the writing is of public concern. No language in RCW 4.24.525 excludes, from the statute's shield, speech motivated by greed or revenge. No case law supports such a contention.

¶ 146 Some of the world's finest literature addressing a topic of public and grave concern was written in a spiteful spirit. A prime example is Ida Tarbell's History of the Standard Oil Company, which depicts John D. Rockefeller, Sr., as a crabbed, miserly, greedy monopolist. Tarbell penned the book from enmity and vengeance resulting from Rockefeller's ruthless tactics that put her father out of the oil business. New York University listed the book as number five on a 1999 list of the top 100 works of twentieth century journalism.

¶ 147 Yvonne Johnson was in the public eye as a result of her leading position with a cherished community theater and newspaper articles praising her performance. One in the public eye soon learns that unfair attacks often follow public praise. The remedy for verbal abuse, however, is not found in a lawsuit. Johnson should find some consolation that many readers find James Ryan's blogs obsessive, boorish, and foolish. Also, a court's ruling or this dissenter's vote for protection of speech does not denote approval of the speech. Whether hyperbolic or sensational, the speech at issue in this case bears a connection to an issue of public concern: Spokane's Civic Theatre and its management.

Probability of Johnson Prevailing on Claims

¶ 148 The anti-SLAPP motion procedure statute dictates that, after the moving party has shown that the claims at issue seek to impose liability for statements "in connection with an issue of public concern," "the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim." RCW 4.24.525(2)(d), (4)(b). The majority does not address whether Yvonne Johnson meets this burden, since the majority rules that James Ryan has not shown his speech involved a matter of public concern. In the public interest of brevity and being motivated by public concern, I will also refrain from analyzing this question in detail. I agree with the trial court that Johnson did not meet her burden.

Concurring Opinion

¶ 149 Although the concurring opinion does not seek to base the majority's decision on the Washington Constitution, the opinion mentions article I, section 5 of the Washington Constitution that demands that a speaker be responsible for the abuse of the right to freely speak and write. Yvonne Johnson has not asserted this internally inconsistent constitutional provision as a basis for relief. Johnson quoted the provision in the introduction to her reply brief, but did not discuss its application to her claims. Under RAP 12.1(a), this reviewing court decides a case only on the basis of issues forwarded by the parties in their briefs.

CONCLUSION

¶ 150 The 2010 anti-SLAPP statute, RCW 4.24.525, immunizes James Ryan from the tort claims of Yvonne Johnson. The trial court's dismissal of Johnson's complaint should be affirmed.