I love researching anti-SLAPP motions and free speech issues. Deceased attorney Anatole “Tony” Selivra and I were making a career out of drafting and filing anti-SLAPP motions at the Stanley Mosk Courthouse when Tony’s alcoholism finally did him in and he died in his sleep of a heart attack at age 60. I was living on Westward Beach Road on Pt. Dume in my RV with my German shepherd and Tony was living all over LA & OC in his Lexis. We met at the Primetime AA Harry (psychiatrist friend of Bill W.) Tiebout Meeting at Malibu Methodist Church in 2004 and rode the Primetime psychodrift back into the city and Tony’s law practice located at a PO Box in Playa del Rey. I stayed sober and Tony ended up dead drunk in the parking lot of Saddleback Church in the Orange County Bible Belt. Under the multitudinous eyes of the icons of indulgement, the man had a stellar funeral service at the Russian Orthodox Church in Hollywood. Anatole Selivra, Esq. looked better strapped into that Russian Orthodox upright open-coffin ritual than he ever did standing in his scuffed-up loafers at court.
Everybody gets exactly what they deserve in life and that is beautiful. Someday I’ll write all about my own life of crime, punishment and atonement. Currently I am living in the desert practicing Kundalini Yoga, Roman Catholicism & probate paralegalism and avoiding all UPL. Please do not ever contact me to provide legal services, not even if you are a big-gun rhino hunter like Don Liddy, Esq. Don’t call me, I’ll call you!
This free speech post is a verbatim republication of an excellent anti-SLAPP article from the Digital Media Law Project:
Note: This page covers information specific to California. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use California’s anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike a complaint filed against you based on an “act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiff’s case early in the litigation and award you attorneys’ fees and court costs.
Activities Covered By The California Anti-SLAPP Statute
Not every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily to discourage speech about issues of public significance or public participation in government proceedings. To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an “act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Although people often use terms like “free speech” and “petition the government” loosely in popular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories of activities:
1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third category above, which applies to a written statement in a public forum on an issue of public interest.
Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so long as it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App. 2001).
Many different kinds of statements may relate to an issue of public interest. California courts look at factors such as whether the subject of the disputed statement was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Certainly, statements educating the public about or taking a position on a controversial issue in local, state, national, or international politics would qualify. Some other examples include:
- Statements about the character of a public official, see Vogel v. Felice, 127 Cal. App. 4th 1006 (2005);
- Statements about the financial solvency of a large institution, such as a hospital, see Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006);
- Statements about a celebrity, or a person voluntarily associating with a celebrity, see Ronson v. Lavandeira, BC 374174 (Cal. Super. Ct. Nov. 1, 2007);
- Statements about an ideological opponent in the context of debates about the Israeli-Palestinian conflict, see Neuwirth v. Silverstein, SC 094441 (Cal. Super. Ct. Nov. 27, 2007); and
- Statements about the governance of a homeowners association, see Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).
In contrast, California courts have found other statements to be unrelated to an issue of public interest, including:
- statements about the character of a person who is not in the public eye, see Dyer v. Childress, 147 Cal. App. 4th 1273, 1281 (2007); and
- statements about the performance of contractual obligations or other private interests, see Ericsson GE Mobile Communs. v. C.S.I. Telcoms. Eng’rs. 49 Cal. App. 4th 1591 (1996).
Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging public participation, you do not need to show that the SLAPP actually discouraged you from participating or speaking out. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech.
How To Use The California Anti-SLAPP Statute
The California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistanceimmediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys’ fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days after filing. Additionally, once you file your motion, the plaintiff generally cannot engage in “discovery” — that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out of a protected speech or petition activity (discussed above). Assuming you can show this, the court will then require the plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is not meant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able to make this showing, and the court will dismiss the case. On the other hand, if the plaintiff’s case is strong, then the court will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.
If the court denies your motion to strike, you are entitled to appeal the decision immediately.
In addition to creating the motion to strike, the statute also allows a person whose personal identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash — that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.
When you make your motion to quash, the court “may” grant your request if it is “reasonably made.” In reviewing your motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she must present evidence to support all of the elements of the underlying claim (or, at least, all of the elements within the plaintiff’s control). See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If the plaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.
If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and request assistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit in California, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the First Amendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP in California.
What Happens If You Win A Motion To Strike
If you prevail on a motion to strike under California’s anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys’ fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).
Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a “SLAPPback” suit against your opponent. A “SLAPPback” is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code § 425.18 (setting out certain procedural rules for “SLAPPback” suits). Section 425.18 contemplates bringing a SLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring a SLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.