John Randolph is a Spokane attorney. He was diagnosed with bipolar disorder in 2020. In consultation with his mental health providers, he stopped taking his medication due to side effects in July 2021. He had a mental health breakdown shortly thereafter, on August 3, 2021. During this breakdown, he approached a child at a public park in Coeur d’Alene, Idaho (near one of his law offices). He attempted to persuade the child to go boating with him. Police were called. Randolph made nonsensical statements, including his belief he was the child’s father. Randoph maintained his conduct in the park was consistent with a manic episode, which was corroborated by his mental health provider. Much of the park incident was captured on a responding officer’s body cam video. Randolph plead guilty to an amended charge of “disturbing the peace” in February 2022.
In November 2023, EWU Media (‘EWU’) posted a 14 minute YouTube video about Randoph’s incident utilizing the body cam footage. It was entitled “Bodycam Footage Reveals a Parent’s Worst Nightmare.” The video had voice over narration that included information beyond the depictions in the bodycam footage, including commentary like Randoph is “apparently” “hiding a rather tumultuous past.”
The YouTube post had millions of views and thousands of comments, including references that Randoph was a pedophile. Randolph received harassing emails and voice mails, including a death threat. He closed his law practice due to such harassment, and sued EWU for defamation because its statements led viewers to believe he was a pedophile. EWU moved to dismiss the civil lawsuit, not by claiming Randolph was a pedophile, but under the Uniform Public Expression Protection Act (UPEPA). A summary of UPEPA:
Washington’s Uniform Public Expression Protection Act (UPEPA) was enacted in 2021 (RCW 4.105). It is designed to dismiss meritless lawsuits intended to silence free speech on public issues. It allows defendants to file an expedited motion to strike lawsuits – such as defamation or nuisance claims – within 60 days of a complaint, staying discovery while the motion is heard. It applies broadly to speech, press, assembly, petition, and association rights regarding matters of public concern, including government proceedings. Once a “special motion” is filed, all court proceedings (discovery) are stayed, preventing expensive, drawn-out legal battles. The court must dismiss the case if the plaintiff, such as Mr. Randolph, cannot show a likelihood of success. A prevailing defendant can recover costs and attorney fees. In Thurman v. Cowles Company, 29 Wn. App. 2d 230, 541 P.3d 403, review granted, 3 Wn.2d 1001 (2024), the Court of Appeals struck down or restricted two provisions in UPEPA. First, the court agreed with the argument that “the narrow discovery envisioned in the UPEPA is inconsistent with the broad discovery permitted by CR26, and the civil rules must be given precedence.” Id. at 246. So, “[t]rial courts, when asked to lift a stay under” UPEPA “must adhere to the dictates of CR 26(c), which permits trial courts to restrict discovery when ‘justice [is] require[d] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expenses.’” Id. However, “[i]n making its determination of what justice requires, the trial court should take judicial notice that the legislature, by enacting the UPEPA, has set forth the public policy of the State of Washington.” Id. The scope of discovery is left to the trial court pursuant to the Civil Rules.
Second, the Thurman court ruled that UPEPA’s provision allowing an appeal as a matter of right from an order denying a motion to dismiss conflicts with CR 54(b) and RAP 2.2(b) Under these rules, an order that does not dispose of all claims is interlocutory and is subject to immediate appellate review only under the rules for discretionary review. “In this respect, RCW 4.105.080 is inconsistent” with the court rules “and cannot be given affect.” Thurman, 29 Wn. App. 2d at 246
The EWU video did not explicitly state Randolph had a history of child predation, but evaluating the entire video in the light most favorable to Randoph found a reasonable jury could find that the video narration presented him as “having a history of child predation.” Randoph, page 24. Relying heavily on police body cam footage, EWU never “explained that officers stopped asking Randolph questions because he was answering “yes” to everything and they felt that “something was not right.” Randolph, page 25. This background was not provided. Randolph submitted a powerful declaration denying any criminal history. The burden of proof shifted to EWU Media to prove its narration was true. Instead, EWU Media argued its narration included opinions.
The court held that “because a reasonable jury could find that the “gist” of EWU narration over the video implied Randolph had a history of child predation, genuine questions of material fact remain as to whether false statements caused harm distinct from true portions of the videos.” Randolph, page 26.
The Court of Appeals affirmed the trial court’s denial of the EWU to dismiss, which was based on UPEPA. While Mr. Randoph’s actions at Coeur d’Alene park were very alarming, EWU ‘opinions’ appear not to be based in true fact, and appear to have been highly destructive. A simple “Google” search, utilizing Mr. Randolph’s full name, quickly reveals how for the “pedophile” accusation has gone.