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California’s largest newspapers have filed an amicus curiae brief in a libel case on behalf of two former employees sued by Varian Medical Systems Inc. At issue in the upcoming California Supreme Court arguments is whether legal action against the workers, Michelangelo Delfino and Mary Day, should have been halted while they appealed the denial of their anti-SLAPP motion to the 6th District Court of Appeal. The newspapers say that the case is crucial to maintaining a free press. Attorneys for the California Newspaper Publishers Association and several newspapers, including the Los Angeles Times and San Francisco Chronicle, say the case applies directly to news organizations because they could be forced to pay huge legal fees or be censored while pursuing similar appeals in libel or defamation cases. “In their zeal to squelch unwelcome speech which they could have ignored, they ask this court to make bad law,” First Amendment attorney Karl Olson of San Francisco’s Levy, Ram & Olson wrote in the brief. Olson also represents The Recorder, which is not a party in the case. “[The] respondents ask the court … to ignore the compelling policies behind the anti-SLAPP statute, and the legislative history in question — because of some intemperate and offensive comments directed at a corporation and two executives. This court should decline that invitation,” Olson wrote. Anti-SLAPP (Strategic Lawsuits Against Public Participation) can be lodged in response to lawsuits filed to chill public debate. In late 2001, a Santa Clara County Superior Court jury found that Delfino and Day libeled Varian, of Palo Alto, and its employees and invaded their privacy. The pair — who insulted their bosses in message boards and on a Web site — was ordered to pay $775,000 in damages and refrain from future postings in what was believed to be one of the first Internet libel cases to go to a jury. Earlier, Judge Jack Komar denied the pair’s anti-SLAPP motion. Their attorney said the amicus proves there is more to the case than a vendetta against a former boss. “Whether you are a newspaper or an environmental activist or a regular individual, you knew this was an important tool to communicate freely without having to incur substantial fees defending yourself,” said Jeremy Rosen, of Horvitz & Levy in Encino. “The thrust of the argument that Varian has been making is that [Delfino and Day] are horrible people and should be punished … but the amicus says there is more to this, and this [ruling] could have a profound effect,” Rosen said. “The newspapers have said that this statute and appeal are vital. Otherwise, they’d be subjected to crushing defense costs and lawsuits which would have a chilling effect,” Rosen added. The American Civil Liberties Union has also filed an amicus on behalf of Delfino and Day. Varian’s attorneys say the news organizations’ claims “belittled our client’s position and showed an ignorance about the case.” “They said it was about big companies going after the little guy … but we are also representing two individuals who have been harassed for years,” said Matthew Poppe, from the Menlo Park office of Orrick, Herrington & Sutcliffe. Poppe said the case is more about intimidation than free speech. He said Delfino and Day once arrived in person at a Varian executive’s presentation. “We believe this was a form of intimidation. There was real harm in what they were doing. The way the newspaper organizations present the facts is an unfair representation,” Poppe said. If the Supreme Court rules in their favor, Rosen said he will ask a judge to vacate the conviction and associated fines. Varian could then attempt to bring the charges to court again. Olson was on vacation and could not be reached for comment. Several other large newspapers joined the brief, as well as numerous small daily and weekly newspapers.

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