Imagine you’ve been sued for commenting on a proposed piece of legislation, a political candidate’s qualifications, something that was said or occurred in a prior lawsuit, or a matter of public interest, generally.  Each of those topics certainly feels like an area where you should be able to exercise your First Amendment right to speak your mind, but now you have to spend money to defend yourself in court.  Thankfully, California has a law that not only protects your rights by giving you the opportunity at a very early stage in the proceedings to ask the court to dismiss your case, but also shifts the cost of hiring an attorney to represent and defend you if you are successful.  This law is called California’s Anti-SLAPP statute, SLAPP standing for “Strategic Lawsuit Against Public Participation.”  Of the eighteen states and District of Columbia that have such laws on their books, California’s is considered to be among the broadest and most effective in preventing meritless lawsuits from keeping people from exercising their First Amendment rights. 

Locally, the law has played a role in some headline-grabbing cases.  In 2007, prior to his well-publicized 2013 ouster as general manager of the Fair Board, Stuart Titus and his wife Caroline succeeded in arguing that a request for restraining order was in retaliation for their constitutionally protected speech, then turned around and obtained an order that the party seeking the tossed-out restraining order pay their $12,000 in attorney fees.  In 2013, the City of Eureka successfully defended against a suit by local landlords Floyd and Betty Squires by relying on the law and obtaining two court rulings that the Squireses’ suit improperly complained of the City’s efforts to sue them and bring their properties up to code and that the Squireses were unable to show they were likely to prevail on their claims.  Recently, the court granted an Anti-SLAPP motion that Patrik Griego and I filed, and we’re now in the process of ensuring that the other party – not our client – ends up footing the entire bill for the lawsuit that never should have been filed in the first place.  Partners Tim Needham and Amelia Burroughs have also litigated cases involving Anti-SLAPP motions and are well-versed in the ins and outs of the law.

Several cases are now pending in front of the California Supreme Court that may fine-tune the application of this law in specific but important ways.  In Baral v. Schnitt the high court will likely resolve a split among the California Courts of Appeal as to whether a court can strike a cause of action that includes both protected and unprotected activity.  If it can carve out the offending piece of the cause of action, can the court order the payment of the attorney fees it took to secure that partial victory?  Another issue that arose in a local suit that recently survived a challenge under the Anti-SLAPP law is whether official conduct, such as conduct connected to running for office or voting in office, is protected from a lawsuit alleging conflict of interest, for example.  The beat goes on in the local case, Sears v. Dale, while the Supreme Court is expected to reverse the lower courts’ ruling in City of Montebello v. Vasquez.  Finally, more public official action is under the microscope in Park v. Board of Trustees of California State University, in which a professor sued alleging racial discrimination for denial of tenure.  Court watchers are especially interested in this last case, as the Supreme Court’s grant of review may hint at a new exemption to the law’s application in public entity settings.

California’s Anti-SLAPP law and how it is being applied makes for interesting reading, whether you’re an appellate law nerd, a local gossip hound, or have been sued and believe you were exercising your constitutional rights to free speech or petition.  If you’re in the latter group, Janssen Malloy LLP has extensive experience and success with this important law.