Court revives Cumberland zoo’s defamation claim against PETA

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A Cumberland zoo can pursue its defamation claim against an animal rights group that blogged about its federal lawsuit alleging the facility mistreated animals, Maryland’s second-highest court ruled last week.

In its unreported decision, the Court of Special Appeals said People for the Ethical Treatment of Animals did not have an “absolute privilege” to post about its court-filed allegations against Tri-State Zoological Park of Western Maryland.

PETA’s blog was posted for public consumption and not directed to anyone involved in or potentially involved in the litigation, the appellate court stated in sending the zoo’s defamation claim back toward trial.

The court’s ruling overturned an Allegany County Circuit Court judge’s dismissal of the zoo’s lawsuit. The judge had ruled PETA had an absolute privilege to inform the public of the allegations it made in a federal lawsuit accusing the zoo of having violated the Endangered Species Act in its treatment of animals.

In its 3-0 decision, the Court of Special Appeals said the fact that U.S. District Judge Paula Xinis ultimately upheld PETA’s allegations does not justify dismissal of the zoo’s defamation suit on absolute privilege grounds. However, the judge’s ruling on the allegations’ veracity can be cited in other pretrial motions or as a defense at trial, the appellate court said.

At the dismissal stage, PETA had to show that its blog repeating its allegations was “made in the course of” a court proceeding to be absolutely privileged against a defamation claim, the Court of Special Appeals said, quoting from the Maryland Court of Appeals’ 2011 decision in Norman v. Borison.

“(A) defamatory statement is ‘made in the course of a proceeding’ when it is made by or to an individual participating in or having an actual or potential effect on the action,” Judge Terrence M.R. Zic wrote for the Court of Special Appeals. “In our view, the readers of the blog post play no role in the federal action and their knowledge of the allegations has no apparent effect on that case.”

The zoo’s attorney, Nevin L. Young of Annapolis, praised what he called the appellate  court’s recognition that “there is a difference between self-publication and reporting” on a court filing, which is generally protected from defamation claims.

PETA attorney Brittany Peet said in a statement Monday that the zoo’s defamation claim will ultimately fail.

“Since a federal court has already ruled that animals at Tri-State ‘met a slow and painful demise,’ ‘lived in a bacteria-ridden wasteland,’ and ‘experienced a daily onslaught of environmental horribles,’ the accuracy of PETA’s statements has already been well established,” stated Peet, the PETA Foundation’s deputy general counsel for captive animal law enforcement. “This retaliatory lawsuit is as doomed as the Tri-State Zoo’s attempt to overturn PETA’s Endangered Species Act win.”

PETA sued the 16-acre zoo in U.S. District Court in Greenbelt on July 31, 2017, amid reports of mistreatment of animals at the facility.

That day, PETA posted its blog titled “PETA Sues Over Treatment of Animals Suffering at Tri-State Zoo” in which it detailed its allegations and urged readers to “help us get these long suffering animals to a reputable sanctuary.”

Robert L. “Bob” Candy, the zoo’s owner, filed the defamation lawsuit on May 23, 2018.

Xinis ruled in December 2019 that the zoo had engaged in “flagrant and persistent violations” of the federal Endangered Species Act.

“Rotting vegetables spilled over large receptacles, decaying meat sat in piles outside the kitchen and in the furnace room under the nearby reptile house, and decomposing carcasses were left for days in the enclosures for the tigers and lions,” Xinis wrote in ordering that a lion and two tigers be transferred to The Wild Animal Sanctuary in Keenesburg, Colorado.

At least four animals died amid these woeful conditions between 2016 and 2019, Xinis stated: Mbube the lion was euthanized after “a slow painful demise” from an unknown disease; Bandit the lemur died following a two-year respiratory infection and “chronic stress;” and tigers Kumar and India died of a stroke and sepsis, respectively.

The defamation lawsuit was dismissed at about the same time in Allegany County Circuit Court.

The zoo appealed both decisions.

Zic was joined in the Court of Special Appeals opinion by Judges Kathryn Grill Graeff and Christopher B. Kehoe.

The court issued its decision April 12 in Robert L. Candy et al. v. People for the Ethical Treatment of Animals et al., No. 2221 September 2019.

In January, the 4^th U.S. Circuit Court of Appeals upheld Xinis’ decision in an unpublished per curiam opinion. The zoo has asked the U.S. Supreme Court to review the lower courts’ rulings based on the argument that PETA lacked standing to sue.

PETA’s response is due at the high court April 28.

The zoo’s appeal is docketed at the Supreme Court as Tri-State Zoological Park of Western Maryland Inc. v. People for the Ethical Treatment of Animals Inc., No. 20-1183.