UPDATED: Kish lawsuit dismissed, appeal pending

Mindy Ragan Wood, The Norman Transcript, Okla.
·3 min read

Mar. 31—A lawsuit filed by a local optometrist for slander was dismissed by a district judge Tuesday, but the attorney plans to appeal to a higher court.

Dr. Nicole Kish attended the Washington D.C. rally for former President Donald Trump Jan. 6, 2021 and soon after, her photos posted to social media were shared by Norman residents. Kish claimed the posts were defamatory, and filed a lawsuit against Kathryn Taylor, Christian Sanchez and Kristy Vandenheuvel in January. Vandenheuvel has not been successfully served, court records show.

Following alleged defamatory statements, Kish told the court she was forced to hire off-duty police officers and lost 53 long standing clients, The Transcript reported previously.

However, District Judge Jeff Virgin dismissed the lawsuit on the merits of a state law designed to protect free speech rights.

The Oklahoma Citizens Participation Act was adopted in 2014 and applies to electronic communication, according to the Oklahoma Bar Association [OBA] website.

"The term 'communication' is broadly defined to be the 'making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual or electronic," an OBA journal by Aaron and Noah Meek reads.

Communication as an "exercise of free speech" includes statements made regarding a "matter of public concern," according to the OCPA, which the defendants' attorney Andrew Casey said applied to his clients in his motion to dismiss.

Taylor admits to making statements on her Facebook page which expressed her concern "about a local businesswoman who appeared to have attended a public rally in Oklahoma and another rally in Washington D.C.," Casey's response stated. "These concerns were related to (Kish) not wearing a mask at a public rally in Oklahoma and (on) the flight to Washington, D.C."

Taylor believed she was exercising free speech out of "concern for her and her patients," based on the warnings about the spread of COVID-19 pandemic from public health officials, Casey's motion stated.

Virgin said in his ruling that the defendants' statements were protected.

"The Court finds all of said statements to be either constitutionally privileged statements of pure opinion or subject to the common law fair comment privilege," he wrote.

Virgin also found that both the defendants' and Kish's pleadings and supporting statements were valid on its face, "by clear and specific evidence as to each element" of their claims.

Kish's attorney Kelly Lynn said his client will appeal the ruling.

Casey said his clients were relieved by the judge's decision.

"Ms. Taylor and Mr. Sanchez are excited about the ruling," he said. "The judge carefully and thoughtfully navigated the issues and applied the law in a correct way. We will save any specific discussions for appellate proceedings; but, these two citizens are hopeful about this big first step in preserving their ability to engage in important community discussions without fear of reprisal."

Correction: This story has been updated to include Casey's response and reflect that the OBA journal's authors are Aaron and Noah Meek, not Andrew and Noah Meek. The Transcript regrets the error.

Mindy Wood covers City Hall news and notable court cases for The Transcript. Reach her at mwood@normantranscript.com or 405-416-4420.