- Members of a group of homeowners speak out at a city council meeting against a real estate development and are then sued by the developer for slander.
- A plaintiff loses a lawsuit and then finds himself as a defendant sued for malicious prosecution.
- A Yelp user posts a negative review of a business and then gets sued by the business for defamation.
Each of these situations describes a Strategic Lawsuit Against Public Participation or “SLAPP.” These civil lawsuits are brought to either prevent or punish another person for exercising their First Amendment right to petition the government or to speak about public issues. The primary purposes of these lawsuits is to use the courts to obtain economic or other coercive leverage over the defendants unrelated to the merits of the underling claims. In 1992, California enacted Code of Civil Procedure section 425.16, the anti-SLAPP statute, as a response to these types of lawsuits. Prior to the enactment of Section 425.16, the defendants would spend months or years in litigation and be out of pocket thousands of dollars in attorney’s fees before their First Amendment rights were vindicated. With the protection of Section 425.16 in place, a defendant can now very quickly get a ruling on the merits of the case, get the case dismissed and get all of his attorney’s fees paid for. A defendant who believes he has been named in a SLAPP lawsuit may file a special motion to strike which, if granted, results in a dismissal of the case and immediate right of appeal. However, not all lawsuits qualify as “SLAPPs” and are entitled to protection under Section 425.16. Lawsuits that arise from the following activities may qualify for protection under the anti-SLAPP statute:
(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.
(Code Civ. Proc., § 425.16 subd.(e).)
Proving that the lawsuit arose from constitutionally protected activity is only the first step in the anti-SLAPP process. Even if the lawsuit arises from protected activity, the court is not required to dismiss it. In the next part of this series, I will describe specific examples of the types of statements and activities that have found to be protected by the anti-SLAPP statute. In later posts, I will describe how courts rule on anti-SLAPP motions, how the California legislature amended the anti-SLAPP law to reduce its use and the impact of these amendments on SLAPPback actions.
Jeffrey Lewis is an experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.