354 January 31, 2024 No. 47
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
CIDER RIOT, LLC
and Abram Goldman-Armstrong,
Plaintiffs-Respondents,
v.
PATRIOT PRAYER USA, LLC;
Joseph “Joey” Gibson; Ian Kramer; Christopher Ponte;
David Willis; and Mackenzie Lewis,
Defendants-Appellants,
and
Matthew COOPER
and John Does 1-25,
Defendants.
Multnomah County Circuit Court
19CV20231; A173013
Andrew M. Lavin, Judge.
Submitted May 7, 2021.
David Willis filed the brief pro se.
Mack Lewis filed the brief pro se.
Christopher Ponte filed the brief pro se.
Ian Kramer filed the brief pro se.
James L. Buchal and Murphy & Buchal LLP filed the
briefs for appellants Patriot Prayer USA, LLC, and Joseph
“Joey” Gibson.
Thomas M. Christ and Sussman Shank LLP; Clifford S.
Davidson and Snell & Wilmer LLP; and, Juan C. Chavez
and Oregon Justice Center filed the brief for respondents.
Before Kamins, Presiding Judge, Lagesen, Chief Judge,
and Jacquot, Judge.
Lagesen, C. J.
Reversed in part; otherwise affirmed.
Cite as 330 Or App 354 (2024) 355
356 Cider Riot, LLC v. Patriot Prayer USA, LLC
LAGESEN, C. J.
Although “[n]o federal rule of law restricts a State
from imposing tort liability for business losses that are
caused by violence and threats of violence[,] * * * the pres-
ence of activity protected by the First Amendment imposes
restraints on the grounds that may give rise to damages
liability and on the persons who may be held accountable for
those damages.” N.A.A.C.P. v. Claiborne Hardware Co., 458
US 886, 102 S Ct 3409, 73 L Ed 2d 886 (1982). In this case,
plaintiffs Cider Riot, LLC, and Goldman-Armstrong seek to
recover economic and noneconomic damages for alleged neg-
ligence, trespass, intentional infliction of emotional distress
(IIED), and intentional interference with economic relations
(IIER) from defendants Gibson, Patriot Prayer USA, LLC,
Kramer, Ponte, Willis, and Lewis. The individual defendants
associate with the group or movement known as Patriot
Prayer; plaintiffs are a bar and its owner that associate
with, and host others who associate with, the group or move-
ment known as Antifa.1 The two groups embrace ideologies
that are repugnant to each other.2 The torts are alleged to
1
We refer to Antifa and Patriot Prayer because the evidence presented in
the trial court reflects that many, if not all, of the individuals involved in the
2019 events identified as being part of Antifa or Patriot Prayer. Our general ref-
erences to Patriot Prayer are not references to defendant, Patriot Prayer USA,
LLC, and should not be understood to suggest that the individuals who identify
with Patriot Prayer are members of the LLC.
2
Although the record in this case does not permit us to describe with con-
fidence the respective ideologies or structures of Patriot Prayer and Antifa, it
does permit us to describe with confidence those groups’ respective understand-
ings of each other. According to the allegations in the pleadings and the dec-
larations in the record, those associated with Antifa, short for “anti-fascist,”
view those associated with Patriot Prayer as right-wing extremists, supporting
fascism, white nationalism, and xenophobia. See also Cantu v. City of Portland,
No. 3:19CV-01606-SB, 2020 WL 2952972 at *1 (D Or June 3, 2020) (noting that
counter-protestors of a Patriot Prayer rally describe Patriot Prayer as “far-right
extremists” who rally for the causes of white supremacy, white nationalism, and
xenophobia”). Those associated with Patriot Prayer view those associated with
Antifa as left-wing extremists, supporting communism and socialism. See also
Kessler v. City of Charlottesville, 441 F Supp 3d 277, 282 (W D Va Feb 21, 2020)
(stating that a member of Unite the Right describes Antifa as espousing “violent
rhetoric against Alt-right and politically conservative” speakers and ideas). Each
group perceives the other, and what the other stands for, to be a dire threat to
their own view of democracy and American values. Each group, in addition, views
the other as supporting violence as a means to achieving its goals. The latter per-
spective has a basis in fact; the record also contains evidence demonstrating that
some individuals associated with each group have engaged in acts of violence,
Cite as 330 Or App 354 (2024) 357
have occurred (1) when the individual defendants went to
the bar where, from the public sidewalk, they engaged with
bar patrons associated with Antifa; and (2) through certain
online postings made by defendant Gibson. Defendants filed
special motions to strike under ORS 31.150(2)(c) and (d),3
asserting that plaintiffs’ claims arose out conduct or state-
ments entitled to First Amendment protection. The trial
court denied those motions, entering limited judgments
on the denial required by ORS 31.150(1). Defendants have
appealed those judgments. For the reasons that follow, we
affirm as to defendants Kramer, Ponte, Willis, and Lewis,
reverse with respect to defendant Patriot Prayer USA, LLC,
and reverse in part with respect to defendant Gibson.
I. LEGAL FRAMEWORK
This case is before us on review of the trial court’s
denial of defendants’ special motions to strike under Oregon’s
anti-SLAPP statute, ORS 31.150. The legislature enacted that
statute to protect defendants from lawsuits targeting their
exercise of protected First Amendment rights. See Staten v.
Steel, 222 Or App 17, 30, 191 P3d 778 (2008), rev den, 345 Or
618 (2009) (internal citations and quotation marks omitted).
As explained further below, although plaintiffs’ theory of lia-
bility is imprecise, plaintiffs generally seek to hold defendants
liable in tort (1) for their roles in a political protest of plain-
tiffs’ business that resulted in violent interactions between
plaintiffs’ patrons and some defendants, and (2) for certain
online comments made by some defendants about plaintiffs’
business, including online comments encouraging readers to
report any complaints they had about plaintiffs’ business to
the Oregon Liquor Control Commission (OLCC).4 To provide
and have threatened acts of violence, toward individuals associated with the
other group.
3
ORS 31.150 was renumbered, effective January 1, 2024. See Or Laws 2023,
ch 71, § 1. The amendment to the statute has no bearing on our decision because
we apply the law in effect at the time of the trial court’s decision. Peters v. C21
Investments, Inc., 322 Or App 462, 465, 520 P3d 920 (2022). Accordingly, all ref-
erences to ORS 31.150 are to the statute as it existed when the trial court denied
defendants’ motion to strike.
4
When the events at issue in this case arose in 2019, OLCC stood for “Oregon
Liquor Control Commission.” The Oregon legislature changed the name of the
agency to “Oregon Liquor and Cannabis Commission,” effective August 2, 2021.
See Or Laws 2021, ch 351, § 1. This change of name has no bearing on our decision.
358 Cider Riot, LLC v. Patriot Prayer USA, LLC
context for the parties’ arguments, and our analysis of them,
we provide an overview of Oregon’s anti-SLAPP procedures,
and the applicable First Amendment standards, before turn-
ing to the primary question before us: whether, with respect
to defendants Gibson and Patriot Prayer USA, LLC, plain-
tiffs have presented a prima facie case that those defendants
engaged in conduct for which the First Amendment permits
the imposition of tort liability.
A. Oregon’s Anti-SLAPP Statutes
The Oregon legislature enacted Oregon’s anti-
SLAPP statutes to protect defendants against strategic law-
suits intended to quash the exercise of First Amendment
rights. See Staten, 222 Or App at 30 (explaining history of
the statute). The purpose of the provisions is “to provide for
the dismissal of claims against persons participating in pub-
lic issues * * * before the defendant is subject to substantial
expenses in defending against them.” Id. at 29. To that end,
ORS 31.150 authorizes a defendant in a civil action to file a
special motion to strike any claim arising out of protected
speech and conduct:
“A special motion to strike may be made under this sec-
tion against any claim in a civil action that arises out of:
“(a) Any oral statement made, or written statement
or other document submitted, in a legislative, executive or
judicial proceeding or other proceeding authorized by law;
“(b) Any oral statement made, or written statement
or other document submitted, in connection with an issue
under consideration or review by a legislative, executive or
judicial body or other proceeding authorized by law;
“(c) Any oral statement made, or written statement or
other document presented, in a place open to the public or a
public forum in connection with an issue of public interest; or
“(d) Any other conduct in furtherance of the exercise of
the constitutional right of assembly, petition or association
or the constitutional right of free speech or freedom of the
press in connection with a public issue or an issue of public
interest.”
ORS 31.150(2). This case, as discussed further below,
implicates ORS 31.150(2)(d). Plaintiffs’ claims arise out of
Cite as 330 Or App 354 (2024) 359
defendants’ activities protesting plaintiffs’ business because
of plaintiffs’ association with particular viewpoints, conduct
in furtherance of defendants’ constitutional rights of assem-
bly, association, and free speech.
A defendant wishing to invoke the protections of
ORS 31.150 with respect to a claim or claims may file a spe-
cial motion to strike within 60 days of service of the com-
plaint or later, with the court’s permission. ORS 31.152(1).
As with motions to dismiss under ORCP 21, a defendant
must file a special motion to strike before filing an answer.
Horton v. Western Protector Insurance Company, 217 Or App
443, 453, 176 P3d 419 (2008).
A moving defendant bears “the initial burden of
making a prima facie showing that the claim against which
the motion is made arises out of a statement, document or
conduct described in” ORS 31.150(2). ORS 31.150(3). Once a
court determines that the defendant has made the necessary
showing, “the burden shifts to the plaintiff in the action to
establish that there is a probability that the plaintiff will
prevail on the claim by presenting substantial evidence to
support a prima facie case.” ORS 31.150(3). To establish a
prima facie case on a particular claim, a plaintiff must pro-
duce evidence sufficient to permit a reasonable factfinder
to find in the plaintiff’s favor on the claim. Handy v. Lane
County, 360 Or 605, 622-23, 385 P3d 1016 (2016) (explaining
plaintiff’s burden of production in the context of a special
motion to strike); Snook v. Swan, 292 Or App 242, 246-47,
423 P3d 747 (2018) (explaining that a plaintiff must pro-
duce evidence sufficient to permit a reasonable factfinder to
find that plaintiff proved the elements of their claim) (citing
Wingard v. Oregon Family Council, Inc., 290 Or App 518,
522-23, 417 P3d 545, rev den, 363 Or 119 (2018)).
In evaluating special motions to strike under ORS
31.150, “we ‘liberally’ construe the statute ‘in favor of the
exercise of the rights of expression’ it protects.” DeHart v.
Tofte, 326 Or App 720, 725, 533 P3d 829, rev den, 371 Or 715
(2023) (quoting ORS 31.152(4)); see also C.I.C.S. Employment
Services v. Newport Newspapers, 291 Or App 316, 320, 420
P3d 684 (2018) (so stating). Consistent with that statutory
purpose, the Oregon Supreme Court has recognized that
360 Cider Riot, LLC v. Patriot Prayer USA, LLC
where a claim rests on speech or conduct in furtherance of
the rights of petition, assembly, or association, it is proper
for a court to strike or dismiss the claim if the statements or
conduct on which the claim rests are protected by the First
Amendment and, therefore, not actionable. See Neumann v.
Liles, 358 Or 706, 708, 722, 724, 369 P3d 1117 (2016) (hold-
ing that, in ruling on special motion to strike, trial court
properly dismissed defamation claim because claim was
predicated on statements that were protected by the First
Amendment); see also Campos v. Jensen, 296 Or App 402,
408, 414-15, 439 P3d 540 (2019) (under Neumann, trial court
correctly granted the special motion to strike the plaintiff’s
claims for defamation and invasion of privacy where state-
ments on which claims rested were not actionable under the
First Amendment); cf. Davoodian v. Rivera, 327 Or App 197,
215-16, 535 P3d 309 (2023) (holding that, where a claim for
intentional infliction of emotional distress rested on privi-
leged statements that were not actionable, the defendant’s
special motion to strike should have been granted). We pro-
ceed to discuss the applicable First Amendment standards.
B. First Amendment Standards
1. Standards for imposition of liability arising out of
protest activity.
The United States Supreme Court has recognized
that the First Amendment rights to free assembly, associ-
ation, and speech afford broad protection to protest activ-
ity. That protection means a state’s ability to impose liabil-
ity—civil or criminal—in connection with such activity is
limited. Part of the rationale for this broad protection is to
ensure that protests against the government or “prevailing
social order” are not chilled by the potential for liability. See,
e.g., Counterman v. Colorado, 600 US 66, 75, 81, 143 S Ct
2106, 216 L Ed 2d 775 (2023) (explaining rationale for strong
protections of speech activity, including requirement of a
subjective culpable mental state for imposition of liability).
As the Court recently explained,
“Prohibitions on speech have the potential to chill, or deter,
speech outside their boundaries. A speaker may be unsure
about the side of the line on which his speech falls. Or he
may worry that the legal system will err, and count speech
Cite as 330 Or App 354 (2024) 361
that is permissible as not. Or he may simply be concerned
about the expense of becoming entangled in the legal sys-
tem. * * * The result is self-censorship of speech that could
not be proscribed—a cautious and restrictive exercise of
First Amendment freedoms.
Id. at 75 (internal quotation marks omitted).
The Supreme Court’s decision in Claiborne
Hardware sets the standards for imposition of tort liability
in connection with the activity of protesting or boycotting
private businesses. See 458 US at 915-17 (explaining that
“nonviolent elements of petitioners’ [boycott] activities are
entitled to the protection of the First Amendment,” and, fur-
ther, that “the presence of activity protected by the First
Amendment imposes restraints on the grounds that may
give rise to damages liability and on the persons who may be
held accountable for those damages”); see also Schumacher
v. City of Portland, No CV 07-601-MO, 2007 WL 9809070,
at *3 (D Or Sept 20, 2007) (applying Claiborne Hardware
to grant individual defendant’s special motion to strike fur
business’s claim of intentional interference with business
relations arising out of protest of business). Because that
case is central to defendants’ arguments, was central to the
trial court’s ruling and, ultimately, frames our assessment
of whether plaintiffs established a prima facie case against
two of the individual defendants, we discuss it in detail.
In Claiborne Hardware, the Court was called upon
to address the extent to which individual organizers and
participants in a seven-year boycott, from 1966 through
1972, of white merchants in Port Gibson and Claiborne
County, Mississippi, could be held liable in tort for the busi-
ness damages suffered by the merchants. 458 US at 888-89,
896. The purpose of the boycott was to secure equal civil
rights for Black people in the community. Id. at 899, 907.
The organizers made 19 specific demands on the leaders of
their town and county, including that schools be desegre-
gated, that Blacks be permitted to serve on juries, that bus
stations be integrated, and that verbal abuse by police offi-
cers end. Id. at 899-900. After government officials failed to
honor those demands, the seven-year boycott began. Id. at
900.
362 Cider Riot, LLC v. Patriot Prayer USA, LLC
The boycotted merchants eventually filed suit
against participants in the boycott, seeking to recover their
business losses. Id. at 889. As relevant here, the state courts
had concluded that boycott participants could be liable for
malicious interference with the plaintiffs’ businesses, reject-
ing the defendants’ contention that the First Amendment
precluded liability for their conduct. Id. at 890-91, 895.
Ultimately, the Court disagreed with the state courts, hold-
ing that “the nonviolent elements of petitioners’ activities
are entitled to the protection of the First Amendment.” Id.
at 915. It then turned to the question of who, among the
participants, could be held liable for the violent elements of
the activities, and the applicable standards for assessing
whether particular conduct gave rise to tort liability.
In reaching its conclusion, the Court noted, the boy-
cott involved a range of conduct. Some of that conduct was
peaceable and involved primarily speech and assembly:
“The boycott of white merchants at issue in this case took
many forms. The boycott was launched at a meeting a local
branch of the NAACP attended by several hundred persons.
Its acknowledged purpose was to secure compliance by both
civic and business leaders with a lengthy list of demands
for equality and racial justice. The boycott was supported
by speeches and nonviolent picketing. Participants repeat-
edly encouraged others to join in its cause.”
Id. at 907. Some of the speeches were, at times strongly
worded and suggested that persons who violated the boycott
would be punished. Id. at 937-38. For example, when speak-
ing after local police officers shot and killed a young Black
man, Charles Evers, the Mississippi Field Secretary for
the NAACP, gave a speech in which he stated, among other
things, that “if you be disobedient now you are going to be
in trouble,” that “you better not be caught on these streets
shopping in these stores until” the boycotters’ demands were
met. Id. at 934-40.
Additionally, “[i]ndividuals stood outside of boycot-
ted stores and identified those who traded with the mer-
chants.” Id. at 903. Some of those individuals wore black
hats and became identified as the “Black Hats.” Id. The
names of people who traded with the boycotted merchants
Cite as 330 Or App 354 (2024) 363
were then read at meetings of the Claiborne County NAACP
and “published in a mimeographed paper entitled the ‘Black
Times.’ ” Id. at 903-04. Those “persons ‘were branded as
traitors to the black cause, called demeaning names, and
socially ostracized merely for trading with whites.’ ” Id. at
904 (quoting the findings of the Mississippi trial court).
That particular speech and conduct, the Court
explained, ordinarily was constitutionally protected by the
First and Fourteenth Amendments and could not supply a
basis for tort liability. Id. at 908-15. On the other hand, the
boycott also involved acts of violence that were not protected
by the First Amendment. Id. at 915-16. As a result, the Court
was required to “consider here the effect of [its] holding that
much of petitioners’ conduct was constitutionally protected
on the ability of the State to impose liability for elements of
the boycott that were not so protected.” Id. at 916.
In addition to that protected conduct, the Court
identified 10 incidents of violence, destruction, and theft
directed at boycott violators. Id. at 904-05. As recounted by
the Court, in three instances, shots were fired at homes. Id.
at 904-05. A brick was thrown through a windshield. Id. at
904. A flower garden was damaged. Id. An NAACP mem-
ber took a Black man’s bottle of whiskey because the man
had purchased it from “a white-owned store.” Id. at 905. An
elderly brick mason was physically assaulted for not obeying
the boycott. Id. Another man who declined to participate in
the boycott had his truck tires slashed, although the man
had never been threatened directly for not participating. Id.
at 905-06. Another man and his wife received a threatening
phone call, and on another occasion, the man was told that
he would be whipped for purchasing gas from the wrong
place. Id.at 906.
The Court concluded that the imposition of tort lia-
bility for unlawful conduct occurring in the midst of speech
and conduct protected by the First Amendment requires a
carefully calibrated analysis:
“No federal rule of law restricts a State from imposing tort
liability for business losses that are caused by violence
and by threats of violence. When such conduct occurs in
the context of constitutionally protected activity, however,
364 Cider Riot, LLC v. Patriot Prayer USA, LLC
‘precision of regulation’ is demanded. Specifically, the pres-
ence of activity protected by the First Amendment imposes
restraints on the grounds that may give rise to damages
liability and on the persons who may be held accountable
for those damages.”
Id. at 916-17 (internal citations omitted).
Because the Mississippi courts had not engaged
in that “carefully calibrated” analysis with respect to the
conduct of the individual defendants, the Court’s first step
toward resolving the case was to identify the particular facts
contended to supply the basis for imposition of liability on
each defendant. Id. at 918-22. Following oral argument, the
Court requested and received briefing on the specific acts
committed by each defendant alleged to give rise to dam-
ages. Id. at 896. In their briefing, the plaintiffs identified
four categories of conduct that, in their view, allowed for the
imposition of tort liability in connection with the boycott.
First, the plaintiffs contended that individuals who man-
aged the boycott by participating in or leading the regular
Tuesday night NAACP meetings at which the boycott was
discussed could be liable. Id. at 897. Second, the plaintiffs
contended that individuals, including the “Black Hats,”
who acted as “enforcers” by watching the boycotted stores
and taking the names of boycott violators could be liable.
Id. Third, the plaintiffs contended that individuals who
committed acts of violence, or threatened acts of violence,
could be liable. Id. at 897-98. Finally, the plaintiffs con-
tended that Charles Evers and the national NAACP could
be liable because Evers “ ‘threatened violence on a number
of occasions against boycott breakers,’ ” and because Evers
was acting in his capacity as the Field Secretary for the
national NAACP when he made the (alleged) threats. Id. at
898 (quoting the decision of the Mississippi trial court).
Considering those categories, the Court concluded
that most did not allow for the imposition of liability. The
court noted:
“Civil liability may not be imposed merely because an indi-
vidual belongs to a group, some members of which commit-
ted acts of violence. For liability to be imposed by reason of
association alone, it is necessary to establish that the group
Cite as 330 Or App 354 (2024) 365
itself possessed unlawful goals and that the individual had
the specific intent to further those illegal aims.”
Id. at 920. It then concluded “that on the present record no
judgment may be sustained against most of the petitioners.”
Id. at 924.
With respect to the individuals who participated
in weekly meetings, the Court concluded that there was no
evidence “that any illegal conduct was authorized, ratified
or even discussed at any of the meetings.” Id. That meant
that those individuals could not be held liable in tort for the
damages to the boycotted businesses:
“To impose liability for presence at the weekly meetings of
the NAACP would—ironically—not even constitute ‘guilt
by association,’ since there is no evidence that the associa-
tion possessed unlawful aims. Rather, liability could only
be imposed on a ‘guilt for association’ theory. Neither is per-
missible under the First Amendment.”
Id. at 925 (emphasis in original).
With respect to the store watchers and “Black Hats,”
the Court concluded that the conduct of “standing outside
a store and collecting names” was not unlawful and could
not support liability. Id. Neither could the conduct of wear-
ing black hats, notwithstanding the apprehension it caused:
“Similarly, there is nothing unlawful in wearing black hats,
although such apparel may cause apprehension in others.”
Id. To the extent the plaintiffs’ theory was that those indi-
viduals were associated with groups containing individuals
who committed violent acts, the Court reiterated that “mere
association with [a] group—absent a specific intent to fur-
ther an unlawful aim embraced by that group—is an insuf-
ficient predicate for liability.” Id. at 925-26.
With respect to individuals who engaged in violence
or threats of violence, the Court acknowledged that some
individual members of the store watchers and “Black Hats”
engaged in violence or threats of violence and explained that
“these individuals may be held responsible for the injuries
they caused; a judgment tailored to the consequences of
their unlawful conduct may be sustained.” Id. at 926.
366 Cider Riot, LLC v. Patriot Prayer USA, LLC
Finally, the Court addressed separately the ques-
tion of whether Evers and the national NAACP could be
held liable for damages resulting from the boycott, based
on their leadership and organization roles. The Court ulti-
mately concluded that there was no basis for liability.
The Court first concluded that there was no basis
for imposing liability on Evers based on his role in organiz-
ing and leading the boycott:
“[L]iability may not be imposed on Evers for his presence at
NAACP meetings or his active participation in the boycott
itself. To the extent that Evers caused respondents to suf-
fer business losses through his organization of the boycott,
his emotional and persuasive appeals for unity in the joint
effort, or his ‘threats’ of vilification or social ostracism,
Evers’ conduct is constitutionally protected and beyond the
reach of a damages award.”
Id. at 926.
The Court next considered—and rejected—the
plaintiffs’ arguments that Evers, and the national NAACP,
could be held liable based on the violent acts of other indi-
viduals, because of Evers’s “highly charged” speeches which
had, among other things, made “references to the possibility
that necks would be broken.” Id. at 927. The Court identified
three possible bases for holding Evers liable for the violent
conduct of other individuals:
“First, a finding that he authorized, directed, or ratified
specific tortious activity would justify holding him respon-
sible for the consequences of that activity. Second, a find-
ing that his public speeches were likely to incite lawless
action could justify holding him liable for unlawful conduct
that in fact followed within a reasonable period. Third, the
speeches might be taken as evidence that Evers gave other
specific instructions to carry out violent acts or threats.”
Id. Analyzing the record, the Court concluded that the evi-
dence would not support a conclusion that any of those stan-
dards was satisfied.
Addressing whether Evers’s speeches could support
liability, the Court reiterated its holding in Brandenburg v.
Ohio, 395 US 444, 89 S Ct 1827, 23 L Ed 2d 430 (1969): “This
Cite as 330 Or App 354 (2024) 367
Court has made clear, however, that the mere advocacy of the
use of force or violence does not remove speech from the pro-
tection of the First Amendment.” Claiborne Hardware Co.,
458 US at 927. Rather, liability may be imposed based on
such speech only “where such advocacy is directed to incit-
ing or producing imminent lawless action and is likely to
incite or produce such action.” Brandenburg, 395 Or at 447.5
“When such appeals do not incite lawless action, they must
be regarded as protected speech.” Claiborne Hardware Co.,
458 US at 928. The Court then concluded that Evers’s “emo-
tionally charged rhetoric * * * did not transcend the bourns
of protected speech set forth in Brandenburg.” Id. The Court
also concluded that the speeches, on their own, could not
be used to demonstrate that Evers “authorized, ratified, or
directly threatened acts of violence,” in the absence of other
evidence that Evers had done so. Id. at 929. And the Court
concluded that there was no evidence that Evers had autho-
rized, ratified, or directed any specific tortious activity. Id.
Finally, the Court held that there was no basis
to impose tort liability on the NAACP. Id. at 930. To the
extent the Mississippi courts based the NAACP’s liability
on Evers’s conduct, their judgment could not be sustained
because there was no basis for imposing liability on Evers.
Id. Beyond that, the Court noted that “[t]o impose liability
without a finding that NAACP authorized—either actually
or apparently—or ratified unlawful conduct would imper-
missibly burden the right of political association that are
protected by the First Amendment.” Id. at 931.
In summary, under Claiborne Hardware, the First
Amendment does not permit the imposition of liability for
participation in, and organization of, protest activity on
behalf of a group, absent evidence of a specific intent to
advance an unlawful aim of the group. That is so even when
some members engage in violent or otherwise unlawful con-
duct. The First Amendment also does not permit the imposi-
tion of liability for nonviolent, lawful conduct in furtherance
of a protest of a business even when that conduct causes
the business to suffer losses. The First Amendment does
5
In Brandenburg, the Court reversed the conviction of a Ku Klux Klan
leader who, in a speech to a Klan group, urged “revengeance” to counteract the
suppression of white people. 395 US at 447.
368 Cider Riot, LLC v. Patriot Prayer USA, LLC
not permit imposition of liability on an individual who advo-
cates for the protest, even if that advocacy urges unlawful or
violent activity unless the Brandenburg test for imposition
of liability is satisfied. Relatedly, the First Amendment does
not permit the imposition of liability of a leader or organizer
of protest activity for the torts of individuals participating
in the protest, absent evidence that the leader or organizer
directed, authorized, or ratified the specific tortious conduct.
Notwithstanding those principles, the First Amendment
does permit the imposition of liability on individuals for
their own violent acts or threatened violent acts.
2. First Amendment limitations on negligence liability
For purposes of this case, one final area of First
Amendment law warrants discussion. In one claim, plain-
tiffs seek to hold defendants Gibson and Patriot Prayer, LLC,
liable under a negligence theory: that Gibson’s speech and
related conduct created a foreseeable risk of harm to plain-
tiffs’ business by other individuals. In Counterman, though,
the Supreme Court clarified what type of mental state is
required to hold a person civilly or criminally liable when
the First Amendment is implicated, even if the individual’s
speech or conduct ultimately falls outside the protection of
the First Amendment. In so doing, the Court held that lia-
bility may not be imposed under a negligence standard.
At issue in Counterman was the minimum mental
state required for the imposition of liability for threats. The
Court explained that although threats are not entitled to
First Amendment protection, the Court’s case law affords
“ ‘strategic protection’ ” to unprotected speech so as to steer
wide of the chilling effect created by the potential for civil or
criminal liability. Counterman, 600 US at 75 (quoting Gertz
v. Robert Welch, Inc., 418 US 323, 342, 94 S Ct 2997, 41 L Ed
2d 789 (1974)). One component of that strategic protection
“is to condition liability on the State’s showing of a culpable
mental state.” Id. Further, to provide adequate protection,
the culpable mental state must be a subjective one: “[T]he
First Amendment precludes punishment, whether civil or
criminal, unless the speaker’s words were intended (not
just likely) to produce imminent disorder.” Id. at 76 (cit-
ing, among other cases, Brandenburg, 396 US at 447 and
Cite as 330 Or App 354 (2024) 369
Claiborne Hardware Co., 458 US at 927-29 (internal quota-
tion marks omitted)). An objective mental state standard is
not permissible because it creates the risk of self-censorship.
Id. at 77-78. For that reason, the First Amendment forbids
the use of a negligence standard for the imposition of lia-
bility based on speech that, itself, is not entitled to First
Amendment protection. Id. at 79 n 5. Ultimately, the Court
concluded that recklessness was a constitutionally sufficient
mental state for the imposition of liability for threats under
the circumstances at issue in Counterman. Id. at 79-81.
On this point, we acknowledge that the Fifth Circuit,
in a divided decision issued 11 days before Counterman,
reached a different conclusion as to whether the First
Amendment permits the imposition of tort liability for neg-
ligence in organizing or leading protest activity. In Doe v.
Mckesson, 71 F4th 278 (5th Cir 2023), that court considered
whether Mckesson, the leader of a Black Lives Matter protest
in Baton Rouge, Louisiana, could be liable under a negligence
theory for serious injuries sustained by a police officer when
an unidentified protester—not Mckesson—threw a rock or
similar projectile which hit the officer in the face. Mckesson,
71 F4th at 281-84. The majority opinion held that the leader
could be liable in negligence to the officer for “organiz[ing]
and direct[ing] the protest in an unreasonably dangerous
manner [that] caused the violent encounter that led to [the
officer’s] injuries,” rejecting Mckesson’s arguments that the
First Amendment, as construed in Claiborne Hardware, pre-
cluded the imposition of liability on a protest leader for the
violent conduct of another, unless the Claiborne Hardware
standards were met. Id. at 295.
The dissenting opinion agreed with Mckesson that,
under Claiborne Hardware, Mckesson could not be liable for
the unidentified protester’s violent act because Mckesson
did not “stray from lawfully exercising his own rights.” Id. at
300 (Willett, J., concurring in part and dissenting in part).
Apart from concluding that Mckesson’s own activities did
not fall within the categories for which Claiborne Hardware
permits imposition of liability, the dissenting opinion also
concluded that the First Amendment does not permit the
imposition of liability for a third party’s violence under a
370 Cider Riot, LLC v. Patriot Prayer USA, LLC
negligence standard: “[A] protest leader’s simple negligence
is far too low a threshold for imposing liability for a third
party’s violence.” Id. at 306 (Willett, J, concurring in part
and dissenting in part). The dissenting opinion, instead,
read Claiborne Hardware to require a higher-level mental
state because of how a negligence theory of liability “would
have enfeebled America’s street-blocking civil rights move-
ment, imposing ruinous financial liability against citizens
for exercising core First Amendment freedoms.” Id. at 313
(Willett, J., concurring in part and dissenting in part). The
dissenting opinion explained:
“Holding Mckesson responsible for the violent acts of others
because he ‘negligently’ led a protest that carried the risk
of potential violence is impossible to square with Supreme
Court precedent holding only tortious activity meant to
incite imminent violence, and likely to do so, forfeits con-
stitutional protection against violent acts committed by
others.”
Id. (emphasis in original). Thus, the dissenting opinion con-
cluded, the First Amendment does not allow for the impo-
sition of liability on a protest leader based on the violent
conduct of a protest participant absent some showing that
the protest leader committed an intentional tort: “Summing
up: McKesson is not liable for intentional violence, foremost
because he did not commit any violence, but at a minimum
because he did not commit any intentional tort.” Id. at 313.
As noted, the Supreme Court decided Counterman
shortly after the Fifth Circuit’s decision in Mckesson. In
its decision, the Court unequivocally rejected a negligence
standard for the imposition of liability arising out of speech
because such a standard would not adequately insulate the
core freedoms protected by the First Amendment from the
chilling effect of potential liability. In view of Counterman,
we are persuaded that the dissenting opinion in Mckesson
was correct to conclude that the First Amendment does not
allow for the imposition of liability on a protest leader or an
organizer under a negligence theory.6
6
As of this writing, a petition for a writ of certiorari to the United States
Court of Appeals for the Fifth Circuit is pending in the United States Supreme
Court. See Mckesson v. Doe, No. 23-373.
Cite as 330 Or App 354 (2024) 371
II. FACTUAL BACKGROUND
Having provided an overview of Oregon’s anti-
SLAPP procedures and the limitations that the First
Amendment places on the imposition of liability for speech
and protest activities, we turn to the facts of this case.
Plaintiff Cider Riot, LLC, is a brewery and bar
in Northeast Portland. Plaintiff Goldman-Armstrong is
its owner and operator. This tort case arises, for the most
part, out of a 2019 clash between patrons of Cider Riot, who
are associated with Antifa, and, among others, defendants
Gibson, Kramer, Ponte, Willis, and Lewis, all of whom are
associated with a group or movement known as Patriot
Prayer. Defendant Patriot Prayer USA, LLC, is a limited
liability company owned entirely by Gibson. It has no mem-
bers other than him. Those who identify with Patriot Prayer
hold starkly divergent views from those who identify with
Antifa. Those divergent views have generated immense hos-
tility, which has led to confrontations, which has resulted in
violence between those holding opposing views.
The clash at the heart of this case began as a heated
exchange of political viewpoints between defendants, who
were on public property adjacent to the brewery and bar,
and plaintiffs’ patrons, many of whom were sitting in the
bar’s outdoor seating area. Ultimately, the verbal dispute
escalated into some physical confrontations. This resulted
in injuries to some of plaintiffs’ patrons and, plaintiffs
allege, a range of economic and noneconomic losses. Several
days after the incident, Gibson urged people to report Cider
Riot to the OLCC. Other individuals made online comments
disclosing the names and addresses of plaintiffs’ business
partners.
For their involvement in that clash, encouraging
complaints to the OLCC, and identifying plaintiffs’ busi-
ness partners, plaintiffs seek to hold all defendants liable
for four torts: negligence, trespass, intentional infliction of
emotional distress, and intentional interferences with eco-
nomic relations.
Defendants Kramer, Ponte, Willis, and Lewis all
filed answers to the complaint. Defendants Gibson and
372 Cider Riot, LLC v. Patriot Prayer USA, LLC
Patriot Prayer USA, LLC, responded differently, filing spe-
cial motions to strike under ORS 31.150, Oregon’s “anti-
SLAPP” statute.7 Their theory was that plaintiffs would not
be able to meet the First Amendment standard, established
in Claiborne Hardware Co., governing the imposition of
tort liability arising out of protected political protest activ-
ity. After Gibson and Patriot Prayer USA, LLC, filed their
motion, Kramer, Ponte, Willis, and Lewis also filed special
motions to strike.
The trial court denied the motions filed by defen-
dants Kramer, Ponte, Willis, and Lewis as untimely. It
denied the motion filed by defendants Gibson and Patriot
Prayer USA, LLC, concluding that, as required by ORS
31.150(3), plaintiffs had put forth sufficient evidence to
make a prima facie case for tort liability, especially when
the Claiborne Hardware standard is taken into account. The
court explained:
“In their complaint, plaintiffs allege four claims:
Negligence, trespass, intentional infliction of emotional dis-
tress, and intentional interference with economic relations.
“The majority of the facts that the plaintiffs allege in
support of those claims occurred on May 1st of this year
in an area immediately surrounding the premises of Cider
Riot.
“Both plaintiffs and defendants have submitted affi-
davits and video evidence that describe and depict those
events. No single piece of video evidence or affidavit tells
the whole story of what happened outside of Cider Riot on
May 1st.
“And taken together, the evidence as a whole paints a
picture that is somewhat ambiguous in certain ways and
subject to multiple and competing interpretations, each of
which is arguably reasonable.
“From that evidence, could a reasonable trier of fact
conclude that it is more likely than not that certain individ-
uals outside Cider Riot on May 1st engaged in conduct that
went beyond Constitutionally protected speech or demon-
stration and therefore became tortious or criminal?
7
See Handy v. Lane County, 360 Or 605, 612, n 4, 385 P3d 1016 (2016)
(explaining anti-SLAPP suits).
Cite as 330 Or App 354 (2024) 373
“And the answer to that is yes, a reasonable trier of fact
could find that. The parties have presented direct evidence
that would support such a conclusion; specifically, the
plaintiffs have presented direct evidence to that effect.
“Could a reasonable trier of fact conclude that, more
likely than not, Joey Gibson personally engaged in physi-
cal conduct of that kind? No, I don’t think so, not from the
evidence that I have seen.
“Finally, could a reasonable trier of fact conclude, on a
more likely than not basis, that Joey Gibson and Patriot
Prayer are liable for the tortious and/or criminal conduct of
the other individuals outside Cider Riot on May 1st because
Gibson and Patriot Prayer somehow ratified, coordinated
or directed that conduct?
“I found that to be a more difficult question to answer
than the others. If there is any direct evidence of ratifica-
tion, coordination or direction, it is scant at best.
“However, I conclude that plaintiffs have presented suf-
ficient circumstantial evidence from which a reasonable
trier of fact could infer that Gibson and Patriot Prayer
ratified, coordinated or directed the tortious and criminal
behavior of others at Cider Riot on May 1st, thereby becom-
ing liable for their conduct.
“On the other hand, could a reasonable trier of fact con-
clude otherwise? Specifically, could a reasonable trier of
fact conclude that it is not more likely that the defendants
ratified, coordinated or directed the conduct of other pres-
ent? Yes, I believe so.
“Nevertheless, the standard that I am to apply today
does not require certainty as to the—as to an outcome in
plaintiffs’ favor in order for plaintiffs to defeat defendants’
special motion to strike.”
The trial court then entered a limited judgment
denying all the motions, as required by ORS 31.150(1).
Defendants appealed.
On appeal, defendants Gibson and Patriot Prayer
USA, LLC, argue that the trial court erred when it con-
cluded that plaintiffs had established a prima facie case for
tort liability against them under the standards set forth
in Claiborne Hardware. Defendants Kramer, Ponte, Willis,
374 Cider Riot, LLC v. Patriot Prayer USA, LLC
and Lewis argue that the trial court erred in denying their
motions to strike as untimely.
In response, plaintiffs first raise an issue with
the record. They point out that defendant Gibson relies, in
part, on videos that his lawyer played at the hearing on
the motion to strike, but that were not formally offered into
evidence. Although the Appellate Commissioner granted
Gibson’s motion to supplement the record on appeal with the
videos, plaintiffs argue that ruling was in error and that
the court cannot rely on the videos for that reason. Plaintiffs
also argue that we cannot look to the videos because the
transcript of the hearing on the motion to strike does not
reflect what particular portions of the videos the trial court
watched. In addition, plaintiffs argue that under the proce-
dural standards that govern special motions to strike under
ORS 31.150, we are foreclosed from considering defendant’s
video evidence in assessing whether plaintiffs have made a
sufficient prima facie case on each of their claims against
defendant.
Next, plaintiffs characterize the special motion to
strike filed by defendants Gibson and Patriot Prayer USA,
LLC, as challenging the entirety of the complaint, rather
than each claim. Specifically, plaintiffs argue that the fail-
ure to challenge the viability of each claim means that we
must affirm in full if plaintiffs have established a prima
facie case with respect to any single claim.
Plaintiffs then argue that Gibson and Patriot Prayer
USA, LLC, did not establish that plaintiffs’ complaint tar-
geted protected activity for purposes of ORS 31.150. Finally,
plaintiffs assert that their evidence establishes a prima
facie case for each of their claims against Gibson and Patriot
Prayer USA, LLC. Although the trial court decided the case
under the Claiborne Hardware standard, and defendants
Gibson and Patriot Prayer USA, LLC, have thoroughly
briefed the case under the Claiborne Hardware standard,
plaintiffs do not cite Claiborne Hardware in their brief, or
engage with it or the trial court’s analysis. Rather, plaintiffs
somewhat summarily assert that “[t]here is ample evidence
from which a jury could find that Gibson went beyond the
abstract advocacy that enjoys First Amendment—to find
Cite as 330 Or App 354 (2024) 375
that he engaged in conduct that was intended to produce,
likely to produce, and, indeed, did produce imminent acts of
lawlessness and violence, and also to find that he engaged in
some of that himself.”
III. STANDARD OF REVIEW
We review a trial court’s grant of a special motion to
strike for legal error. Plotkin v. SAIF, 280 Or App 812, 815,
385 P3d 1167 (2016), rev den, 360 Or 851 (2017). In determin-
ing whether a plaintiff’s evidence is sufficient to establish a
prima facie case for purposes of ORS 31.150(3), we view the
facts in the light most favorable to plaintiff. Handy, 360 Or
at 608 n 1. That means “we consider plaintiff’s evidence and
draw the reasonable inferences from that evidence in favor
of plaintiff.” Plotkin, 280 Or App at 815-16. Where there is
a factual conflict in the evidence, we adopt the version that
is most favorable to plaintiff, as long as it is supported by
sufficient evidence. Id. at 816. We will consider defendants’
opposing evidence “only to determine if it defeats plaintiff’s
showing as a matter of law.” Id. See also Bryant v. Recall
for Lowell’s Future Committee, 286 Or App 691, 692-93, 400
P3d 980 (2017) (so noting). Whether the evidence is legally
sufficient to establish that an individual defendant engaged
in conduct that is actionable under the First Amendment
presents a legal question that we review for legal error. See
generally Claiborne Hardware Co., 458 US at 918-34 (so
reviewing).
IV. ANALYSIS
As noted, the trial court denied the special motions
to strike by defendants Kramer, Ponte, Willis, and Lewis
for procedural reasons; it denied the special motion to
strike by defendants Gibson and Patriot Prayer LLC on the
ground that plaintiffs established a prima facie case under
Claiborne Hardware. We address the two sets of defendants
separately.
A. Defendants Kramer, Ponte, Willis, and Lewis
The trial court denied the motions of defendants
Kramer, Ponte, Willis, and Lewis because those defendants
filed their motions after filing responsive pleadings. Under
376 Cider Riot, LLC v. Patriot Prayer USA, LLC
Horton v. Western Protector Insurance Company, 217 Or App
443, 176 P3d 419 (2008), that ruling is correct. There, we
held that that ORS 31.150(1) ultimately requires that “a
motion to strike be filed within 60 days after service, or in
the court’s discretion, at any time later, only if a responsive
pleading has not yet been filed.” Id. at 451 (emphasis in orig-
inal). Although defendants urge us not to apply that con-
trolling precedent, we are not persuaded. Accordingly, we
affirm the judgment of the trial court denying the motions
of defendants Kramer, Ponte, Willis, and Lewis as untimely.
B. Defendants Gibson and Patriot Prayer USA, LLC
We turn to the question of whether the trial court
correctly concluded that plaintiffs established a prima facie
case against defendant Gibson and defendant Patriot Prayer
USA, LLC, so as to withstand those defendants’ properly
filed special motion to strike. As mentioned, plaintiffs raise
a number of procedural arguments. We address those first,
before turning to the question of the sufficiency of plaintiffs’
prima facie cases against defendant Gibson and defendant
Patriot Prayer USA, LLC.
1. Procedural arguments
a. Scope of the record
In support of their arguments in support of, and
opposing, defendants’ special motion to strike, all parties
relied on affidavits and video evidence, some of which was
played during the hearing on the motion.8 Although the trial
court stated on the record that it reviewed the video evi-
dence, and relied on that evidence, together with the affida-
vits, the trial court record transmitted to our court did not
contain all of the video evidence that had been submitted to
the trial court. Upon discovering the omission, defendants
moved to supplement the record with the omitted video evi-
dence, on which defendants had relied both to argue that
plaintiffs’ claims implicated ORS 31.150, and to counter
plaintiffs’ prima facie case. Over plaintiffs’ objection, the
Appellate Commissioner granted the motion. In their brief
to us, plaintiffs argue that we should reconsider that ruling
8
Some of the affidavits submitted by plaintiffs referred to video that was
viewable on YouTube.
Cite as 330 Or App 354 (2024) 377
or decline to consider the evidence because it is unclear from
the record what specific parts of the videos that the trial
court viewed.
We decline to reconsider the commissioner’s ruling.
Although we recognize that defendants were not able to sup-
ply the court with the exact copy of the video evidence that
was provided to the trial court, the commissioner permissi-
bly concluded that what defendants provided was what was
before the trial court, and plaintiffs’ arguments have not
persuaded us to displace that conclusion. As for plaintiffs’
argument that we should not consider the videos because
it cannot be determined what portions of the video the
trial court relied on, that argument also does not provide a
basis for disregarding the video evidence submitted for and
against the special motion to strike. Regardless of whether
the trial court viewed all of the video evidence at the hear-
ing, or just a part of it, all of it was submitted to the trial
court as a basis for its decision, and there is no indication
that the court struck any of the submissions.
Accordingly, in evaluating the parties’ arguments
on appeal, we have reviewed the evidence in the record,
including the video evidence that the commissioner permit-
ted defendants to submit to this court. In considering that
evidence when evaluating the sufficiency of plaintiffs’ prima
facie cases, we are mindful of the limitations on how we can
employ that evidence. As noted in our statement of the stan-
dard of review, where there is a conflict in the evidence, we
resolve that conflict in favor of plaintiffs, and consider defen-
dants’ evidence only to the extent it defeats plaintiffs’ claims
as a matter of law. Plotkin, 280 Or App at 816.
b. Specificity of special motion to strike
Plaintiffs also argue that defendants’ motion to
strike targeted the complaint in its entirety, and did not, as
ORS 31.150 requires, target individual claims. They argue
further that, if we determine that plaintiffs have made a
prima facie case for any claim, then we should affirm the
denial of the motion to strike in its entirety. Although plain-
tiffs’ argument accurately reflects the analysis we employ
when a motion to strike indiscriminately challenges a
378 Cider Riot, LLC v. Patriot Prayer USA, LLC
multi-claim complaint as a whole, see Tokarksi v. Wildfang,
313 Or App 19, 25-26, 496 P3d 22, rev den, 368 Or 788
(2021), we disagree that defendants’ motion to strike, viewed
in its entirety, challenged the entire complaint indiscrim-
inately. Although the motion to strike targeted the com-
plaint as a whole, in their memorandum in support of the
special motion to strike, defendants walked through each
of the alleged claims and argued that plaintiffs would not
be able to establish prima facie cases against either defen-
dant Gibson or defendant Patriot Prayer USA, LLC. In their
briefing on appeal, defendants have again addressed each
claim individually. For that reason, we too analyze the suf-
ficiency of plaintiffs’ prima facie case with respect to each
separate claim against each individual defendant.
2. Whether plaintiffs’ claims are subject to ORS 31.150
With respect to the merits of defendants’ motion to
strike, plaintiffs first argue that ORS 31.150 does not apply
to their claims at all and urge us to affirm the trial court’s
denial of the motion on that alternative ground. As did the
trial court, we conclude that defendants established that
ORS 31.150 applies to plaintiffs’ claims. In particular, with
respect both to plaintiffs’ claims arising out of the May 1
incident, and to plaintiffs’ claims arising out of defendant
Gibson’s online statements encouraging people to report
plaintiffs to the OLCC, those claims arise out of “conduct
in furtherance of the exercise of the constitutional right of
assembly * * *or association * * * or the constitutional right of
free speech * * * in connection with a public issue or an issue
of public interest.” ORS 31.150(1)(d).
The claims arising out of the May 1 incidents arise
out of defendant Gibson’s participation in a collective protest
of plaintiffs’ business and its association with Antifa, which
is conduct in furtherance of the constitutional rights of asso-
ciation, assembly, and free speech, as Claiborne Hardware
illustrates. 458 US at 932-33. As for defendant Gibson’s
posting of online statements encouraging people to report
plaintiffs’ business to the OLCC, that conduct, too, falls
within ORS 31.150(1)(d). See Neumann, 295 Or App at 344-
46 (concluding that online reviews of wedding venue consti-
tuted conduct covered by ORS 31.150(1)(d), as it was speech
Cite as 330 Or App 354 (2024) 379
on a matter of public interest). As an establishment serving
alcohol, plaintiff Cider Riot was subject to regulation by the
OLCC, and commenting to the OLCC on its licensee, and
urging other members of the public to make comments to
the OLCC about a licensee constitutes conduct in further-
ance of the right to petition the government. The trial court
correctly concluded that plaintiffs’ claims against defen-
dants Gibson and Patriot Prayer USA, LLC, are subject to
ORS 31.150.
3. Prima facie case against the LLC
We first consider whether plaintiffs have estab-
lished a prima facie case against Patriot Prayer USA, LLC.
As noted, defendant Gibson is the sole member, owner, and
employee of the LLC. He created the LLC for the purpose
of accepting donations to assist his activities, including his
activities opposing Antifa. In their brief on appeal—much
as was the case below—plaintiffs have not identified any
specific conduct by Patriot Prayer USA, LLC, that would
support the imposition of liability on any of the four claims
alleged in the complaint. Instead, they argue that “[f]or all
intents and purposes, Gibson and the LLC are one and the
same.” They also assert that Patriot Prayer USA, LLC, is
vicariously liable for Gibson’s activities “under the doctrine
of respondeat superior.” And they assert that “Gibson didn’t
argue below that the LLC is not liable for his torts, so that
argument isn’t preserved for this court’s review.”
We conclude that plaintiffs have not met their
burden under ORS 31.150 to establish a prima facie case
against the LLC. As defendants point out, Gibson and the
LLC jointly filed the motion to strike the claims against
them, and argued that plaintiffs would not be able to estab-
lish a prima facie case with respect to either defendant as to
any claim. Once the trial court determined that the claims
alleged in the complaint were subject to ORS 31.150, it was
plaintiffs’ burden to put forth a prima facie case with respect
to each claim and each defendant. ORS 31.150(3); Handy,
360 Or at 622-23. Plaintiffs did not do so with respect to the
LLC. They did not produce any evidence that would permit
a reasonable factfinder to determine that the LLC engaged
in tortious conduct, and they did not produce evidence that
380 Cider Riot, LLC v. Patriot Prayer USA, LLC
would permit the imposition of liability on the LLC under
either an alter ego theory or a vicarious liability theory. See
Rowden v. Hogan Woods, LLC, 306 Or App 658, 679-82, 476
P3d 485 (2020) (stating the standards for treating an LLC
as an alter-ego of a member or manager); see also Harkness
v. Platten, 359 Or 715, 734, 375 P3d 521 (2016) (stating stan-
dards for imposition of vicarious liability). Accordingly, the
special motion to strike should have been granted as to all
claims with respect to the LLC.
4. Prima facie case against defendant Gibson
Finally, we turn to the question whether plain-
tiffs have established a prima facie case against defendant
Gibson on any of their four claims. Our resolution of this
question has been hindered, to some degree, by plaintiffs’
failure to engage with the analysis of the trial court or with
the Claiborne Hardware standard. Rather than identify
with precision the specific conduct on which their claims
against defendant Gibson rest, plaintiffs, in the main, argue
that Gibson is liable for harms resulting from the events
of May 1 as a result of his leadership role and his presence
at Cider Riot on that day. Despite that lack of precision,
we nonetheless review the record, as did the trial court,
to determine whether it evidences conduct by Gibson that
would permit the imposition of tort liability consistent with
the First Amendment. As noted above, in conducting our
review of the record we have reviewed the video evidence
as well as the declarations, and, in the main, agree with
the trial court’s assessment of the evidence. That evidence,
particularly the video evidence, when the May 1 encounter
is viewed in its entirety, does not tend to indicate any violent
conduct by Gibson himself, although it does evidence violent
conduct both by persons apparently associated with Patriot
Prayer, and by persons associated with Antifa or with plain-
tiffs. Plaintiffs’ declarations tend to suggest a much more
violent event on May 1 than the video reflects. Although we
are mindful of our standard of review, and we resolve dis-
putes of fact in favor of plaintiffs’ version of events, where
the declarations in support of plaintiffs’ case rest on broad
and conclusory characterizations of the events in question,
rather than specific assertions of fact, we consider those
Cite as 330 Or App 354 (2024) 381
allegations in the light that the video sheds on them in
assessing plaintiffs’ claims that defendant Gibson engaged
in conduct that is actionable under the First Amendment.
Doing so, we believe, is consistent with our obligation under
ORS 31.152 to “liberally construe[ ]” the provisions of the
anti-SLAPP statutes “in favor of the exercise of the rights
described in ORS 31.150(2).” DeHart, 326 Or App at 725;
ORS 31.152(4).
a. Negligence
Plaintiffs’ first claim against Gibson is negligence.
The gravamen of that claim is that Gibson’s prolific and
well-publicized activities opposing Antifa created a foresee-
able risk of harm to plaintiffs when “Gibson coordinated
with Patriot Prayer members to arrive at Cider Riot” to “[t]
ake the fight to Antifa.” Plaintiffs allege that “[g]iven the
repeated extreme incitements of violence against perceived
political enemies, it was foreseeable that Defendants’ actions
would lead to harm to Cider Riot.” This claim rests largely
on evidence of speeches and other statements that Gibson
made about Antifa and its association with Cider Riot, as
well as evidence of prior violent acts and vandalism against
Cider Riot, acts that indicated Antifa was the target.
We have no doubt that, on this record, a reason-
able jury could find that it was foreseeable that Gibson’s
anti-Antifa advocacy, together with his comments associat-
ing Cider Riot with Antifa, would lead to violent or unlaw-
ful acts against plaintiffs. But, as explained in Counterman
and Judge Willett’s dissenting opinion in Mckesson, the
First Amendment does not allow for imposition of liability
for speech or for protest organization based on a negligence
standard. For that reason, plaintiffs have not established
a prima facie case of actionable negligence against Gibson,
and the trial court erred in denying the special motion to
strike the negligence claim against Gibson.
b. Trespass
Plaintiffs’ second claim against Gibson is trespass.
“Trespass to real property is an intentional entry upon the
land of another by one not privileged to enter.” Collier v. City
of Portland, 57 Or App 341, 344, 644 P2d 1139 (1982). Here,
382 Cider Riot, LLC v. Patriot Prayer USA, LLC
plaintiffs have identified no evidence that Gibson entered
the Cider Riot property. Indeed, in their discussion of the
evidence supporting a prima facie case of trespass, plain-
tiffs have not pointed to any particular evidence in support
of their trespass claim.9 Rather, their theory on appeal is
that Gibson caused others to throw objects or spray pepper
spray onto plaintiffs’ property. Having reviewed the record
on our own, we have been able to locate no evidence that
would allow the reasonable inference that Gibson himself
directed or authorized third parties to throw objects or spray
mace onto plaintiffs’ property, that he otherwise directed or
authorized third parties to enter plaintiffs’ property, or that
he ratified any intrusion onto plaintiffs’ property. The trial
court erred in denying the special motion to strike the tres-
pass claim as to Gibson.
c. Intentional infliction of emotional distress
Plaintiff Goldman-Armstrong asserts a claim of
intentional infliction of emotional distress (IIED) against
defendant Gibson. A prima facie showing of IIED requires a
plaintiff to submit sufficient evidence from which a reason-
able trier of fact could find that he met his burden of produc-
tion for the following elements: “ ‘(1) the defendant intended
to inflict severe emotional distress on the plaintiff, (2) the
defendant’s acts were the cause of the plaintiff’s severe emo-
tional distress, and (3) the defendant’s acts constituted an
extraordinary transgression of the bounds of socially toler-
able conduct.’ ” Mullen v. Meredith Corp., 271 Or App 698,
713, 353 P3d 598 (2015) (quoting Sheets v. Knight, 308 Or
220, 236, 779 P2d 1000 (1989) abrogated on other grounds by
McGanty v. Staudenraus, 321 Or 532, 901 P2d 841 (1995)).
Having reviewed the record, taking into account
the protections of the First Amendment, much of the evi-
dence would not allow for the conclusion that Gibson’s “acts
9
In their response to the special motion to strike, after citing to trespass
cases, plaintiffs’ argument in support of their trespass claim was limited to the
following:
“Plaintiffs have presented admissible evidence that Gibson interfered with
Plaintiffs’ ability both to admit, or to evict or exclude, visitors to Cider Riot.
Goldman-Armstrong asked Defendants to leave. This satisfies Plaintiff’s
burden of production.”
(Internal citations to declarations omitted).
Cite as 330 Or App 354 (2024) 383
constituted an extraordinary transgression of the bounds of
socially tolerable conduct” in a way that would permit the
imposition of liability consistent with the First Amendment.
Mullen, 271 Or App at 713. The conduct of Gibson and other
individuals involved with Patriot Prayer no doubt caused
emotional distress to plaintiff Goldman-Armstrong. The
same thing, however, is undoubtedly true with respect to
much protest activity targeting a business because such
activity interferes with business. In other words, as with the
Black Hats in Claiborne Hardware, protest activity that is
protected by the First Amendment may often result in the
intended infliction of emotional distress but, because of the
First Amendment protections, will not give rise to tort lia-
bility. 458 US at 927-29.
Nevertheless, as the trial court recognized, plain-
tiff Goldman-Armstrong produced evidence of some conduct
by Gibson that would allow for the imposition of liability
for IIED consistent with Claiborne Hardware. In support
of plaintiffs’ prima facie case, Justin Allen averred that he
observed Gibson “encourage and direct defendant Cooper
to engage a bar patron in a street fight, saying, ‘Go on, go
on.’ ” Directing a person to engage in physically assaultive
conduct is not protected activity under Claiborne Hardware.
458 US at 916. For that reason, Allen’s declaration could sup-
port the imposition of tort liability on defendant Gibson.10
Although the video evidence tends to paint a different pic-
ture of events, it does not compel the conclusion that Allen’s
testimony is inaccurate or that the identified conduct by
Gibson is protected by the First Amendment. Furthermore,
that conduct of directing someone to engage in a street fight
with one of Goldman-Armstrong’s patrons could, in context,
permit a rational inference that it was intended to cause
Goldman-Armstrong severe emotional distress. In addition,
there is evidence that it did, in fact, play a causal role in
Goldman-Armstrong suffering severe emotional distress.
In his declaration, Goldman-Armstrong represented that
10
Because the record would allow a reasonable factfinder to infer that Gibson
directed another person to engage in a street fight with one of plaintiffs’ patrons,
we need not, and do not, address whether there is evidence that would support an
inference that Gibson also authorized or ratified any of the other violent acts that
occurred on May 1.
384 Cider Riot, LLC v. Patriot Prayer USA, LLC
he has suffered fear, anxiety, sleeplessness, and back and
neck pain because of defendants’ acts on May 1, including
the acts of Gibson. Finally, a factfinder could permissibly
conclude not only that the conduct of directing someone to
engage plaintiff’s patron in a street fight falls outside of
the range of conduct protected under Claiborne Hardware,
but also that it “constitute[s] an extraordinary transgres-
sion of the bounds of socially tolerable conduct.” Mullen, 271
Or App at 713. The trial court therefore correctly concluded
that Goldman-Armstrong established a prima facie case of
intentional infliction of emotional distress. Of course, as in
Claiborne Hardware, any eventual judgment for damages
would have to be tailored to the damages caused by the
particular act of violence that Gibson directed. Claiborne
Hardware, 458 US at 926 (requiring “a judgment tailored
to the consequences of [the] unlawful conduct” of the defen-
dants who engaged in unlawful conduct). But such a tailored
judgment is permitted by the First Amendment.
d. Intentional interference with economic relations
Plaintiffs’ final claim is for IIER. The prima facie
elements of a claim for IIER are:
“(1) the existence of a professional or business relationship
* * *, (2) intentional interference with that relationship, (3)
by a third party, (4) accomplished through improper means
or for an improper purpose, (5) a causal effect between the
interference and damage to the economic relationship, and
(6) damages.”
McGanty, 321 Or at 535 (citing Straube v. Larson, 287 Or
357, 360-61, 600 P2d 371 (1979); Wampler v. Palmerton, 250
Or 65, 73-76, 439 P2d 601 (1968)). Plaintiffs predicate this
claim both on Gibson’s conduct during the May 1 incident,
and on his subsequent conduct of encouraging reports about
Cider Riot to the OLCC. At least with respect to the May 1
incident,11 we conclude that plaintiff has established a prima
facie case of IIER. Specifically, the same conduct that would
support the imposition of liability for IIED would support the
11
As to Gibson’s conduct encouraging reports to the OLCC, plaintiffs did not
introduce evidence of the content of those reports but, instead, summarily char-
acterized them as untrue. Absent evidence of the content of the reports demon-
strating that the reports were, in fact, false, plaintiffs have not established that
they suffered any cognizable damages from Gibson’s conduct.
Cite as 330 Or App 354 (2024) 385
imposition of liability for IIER. To the extent that Gibson’s
conduct of directing a person to engage in a fight with a bar
patron interfered with plaintiffs’ business relationships by
deterring customers from patronizing Cider Riot, and there
is some evidence that all the violent acts of May 1 deterred
customers, that would support the imposition of liability for
IIER on Gibson in way that does not run afoul of Claiborne
Hardware. In particular, that conduct, along with other evi-
dence in the record, could support a finding that Gibson, a
third party to plaintiffs’ relationships with their customers,
interfered with plaintiffs’ relationships with their custom-
ers by encouraging assaultive conduct against one of their
patrons, something that deterred patrons from patronizing
plaintiffs’ business, resulting in damages. For that reason,
the trial court did not err in denying Gibson’s special motion
to strike the IIER claim. Of course, as noted above, under
Claiborne Hardware, any ultimate damages award would
have to be tailored to the harm caused by the specific con-
duct that is not entitled to First Amendment protection,
should a factfinder find in plaintiffs’ favor on the other ele-
ments of the claim.
V. CONCLUSION
We affirm the limited judgment denying the special
motion to strike of defendants Kramer, Ponte, Willis, and
Lewis. We reverse the limited judgment denying the special
motion to strike of Patriot Prayer USA, LLC. We reverse
the limited judgment denying the special motion to strike
of defendant Gibson insofar as it denied the motion as to
the claims of negligence and trespass. We affirm the denial
of the motion to strike insofar as it declined to strike the
claims for IIED and IIER.
Reversed in part; otherwise affirmed.