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A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.  Our own Aaron Morris, a well-known writer on the topics of defamation and anti-SLAPP motions, has instead coined the phrase Spurious Litigation Against Public Participation, since that better captures both the goal of the plaintiff and the nature of the lawsuit.

The action is spurious and frivolous because the typical SLAPP plaintiff does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism.  As a bonus, if the SLAPP plaintiff can garner notice in the media, or even among the defendant’s circle, a SLAPP may also intimidate others from participating in the debate.

There is currently no Federal anti-SLAPP law, but approximately 30 states have enacted such legislation. California has a unique variant of anti-SLAPP legislation which has led to a significant volume of SLAPP litigation in this state.  California is truly the anti-SLAPP capitol.  A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone, with just 341 case spread among the rest of the states with anti-SLAPP statutes. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.

California’s anti-SLAPP law is contained in Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense.  Although called a motion to strike, the anti-SLAPP statute is a complicated hybrid of a number of motions from demurrers to motions for summary judgment, with a dash of injunctive relief.  When a defendant is served with a lawsuit the defendant asserts is designed to improperly silence his speech, he has the option of filing an anti-SLAPP motion in the first 60 days after service (although the court can extend this deadline on a showing of good cause).

Once filed, the motion stays any discovery.  This advances the purpose of the underlying statute, which is intended to save defendants from spurious defamation actions, but at the same time it can frustrate the plaintiff with a legitimate claim, who now must show a reasonable likelihood of success in the action, with his hands tied by the discovery stay. (The plaintiff can ask the court for permission to conduct limited discovery on a showing of good cause.)

The three important anti-SLAPP statutes are set forth here, but the heart of legislation is contained in subpart (e) of Code of Civil Prodecure section 425.16, which provides:

(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:

(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;

(4) or 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.

To win an anti-SLAPP motion, the defendant must first show that the speech in question falls under one of the four sections set forth above. But that is just the first prong of the analysis. If the defendant proves the speech was protected, the plaintiff can show that he is still likely to prevail on the action. In other words, defamatory speech is not protected simply because it falls under one of the four sections. (Keeping in mind that speech is not defamatory if it is privileged.)

The least clear of the four sections, and the section that leads to the most contentious anti-SLAPP disputes, is section 4. Section 4 is a catch-all, seeking to protect of " . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." If you are not sure what constitutes an "issue of public interest" you are not alone. These are the words from the statute that are giving the courts the most trouble.

Here is a typical scenario to illustrate the point. A person goes to a doctor and is very displeased with the way the doctor handles the appointment. The patient goes home and goes to Vitals.com, where he can post a review of the doctor. He posts that the doctor is a quack, who should lose his license. The doctor sees the post and sues the patient for defamation.

Can the patient successfully bring an anti-SLAPP motion? Is the doctor’s performance a matter of "public interest"? Most courts have found that a doctor’s performance is one of public interest, but some look at the forum and the number of people involved. Some hold that the public’s interest in this one doctor is not broad enough to be a matter of public interest, and would deny the anti-SLAPP motion on that basis, never reaching the second prong. Others hold that a doctor’s performance, discussed on this website specifically intended to provide a forum for patients to discuss doctors, would constitute a matter of public interest, and would find that defendant has met the first prong, leaving it to plaintiff to prove a likelihood of success. On that basis, the fact that the doctor was called a quack would likely be found to be merely colorful hyperbole and not defamatory.

Same facts, different results, all based on whether the court found the statements to be a matter of public interest. Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech) and the latest definition of "public interest", which changes from week to week, is often far too challenging for a trial court judge to decipher in the limited time he or she has to consider an anti-SLAPP motion.

A bad decision by the judge can be devastating to the defendant or plaintiff. If the special motion is denied when it should have been granted, then the defendant remains hostage to the action.  In an effort to minimize this possibility, the statute provides aht the order denying the motion is immediately appealable, but that is costly and time-consuming, which is what the anti-SLAPP statute was trying to prevent in the first place.  Conversely, improperly (or properly) granting an anti-SLAPP motion will entitle the defendant to a mandatory award of reasonable attorney fees, which can be significant.  And there are no "take-backs" when it comes to SLAPP suits.  Once an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint.

Any of the following types of actions (and perhaps more because the law is expanding) can be a SLAPP suit:

• Defamation.
• Malicious Prosecution or Abuse of Process.
• Nuisance.
• Invasion of Privacy.
• Conspiracy.
• Intentional Infliction of Emotional Distress.
• Interference With Contract or Economic Advantage.

As you can see, many actions can result in an anti-SLAPP motion, and such a motion can be a costly and inequitable minefield if the judge fails to fully understand the law. If you are going to enter that minefield, you need an attorney who is a recognized expert in this field. You need Morris & Stone, attorneys whose primary area of practice is defamation (slander and libel) and the accompanying SLAPP laws.   Call (714) 954-0700 for a free telephone consultation, or click "Contact Us" to submit your questions by email.

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