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SLAPPING AROUND THE FIRST AMENDMENT AND FREE SPEECH

By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

Let’s assume you are a homeowner and belong to your homeowners’ association. A developer is going to build a shopping center in a vacant area adjacent to your home and those of your association members. You decide to oppose the construction because of the impact it will have on traffic in your area and perceived threats to the safety of the families in your association.

The association begins to publicize its opposition in local papers, postings in the area and even an occasional press conference where you severely criticize the project and point out the safety hazards that it poses. There is widespread publicity of this controversy in your community. The newspapers report the critical comments which are harsh. Bang, the next thing you know the developer has filed a lawsuit against the homeowners’ association and some of its spokespersons claiming various wrongs, including libel (written untruths), slander (oral untruths) and related wrongs. The developer seeks an injunction against what it claims are unlawful activities.

So what is it that you and the homeowners’ association do? You claim that, aside from the fact that you deny that any untruths have been told, you have simply been exercising your constitutional right of free speech under the U.S. Constitution’s First Amendment and various similar provisions of the California Constitution. You then rely on a statute passed by the California Legislature in 1992, which is designed to block efforts by persons or entities who file lawsuits in an effort to “chill” the exercise of free speech. This statute allows your homeowners to bring a special motion to strike the complaint which, if granted, prevents the suit from going forward. It is commonly referred to as the “anti-SLAPP” statute.

SLAPP stands for Strategic Lawsuit Against Public Participation, which refers to the lawsuit brought to quell the free speech activities of the group publicly airing its opposition or criticism on some issue of public concern or which is the subject of an “official proceeding” or an issue which is before an executive, legislative or judicial body in such a proceeding. As part of the statute, the Legislature made the following “finding”:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.

To this end, this section shall be construed broadly. The statute provides that if the moving party (here your homeowner’s association) demonstrates that in opposing the shopping mall you were simply exercising your constitutional right to speak out, or “petition for the redress of grievances (e.g. if you filed a lawsuit to enjoin building the mall), then that suit cannot go forward unless the developer demonstrates the “probability of recovery” on the claims asserted. This motion is normally filed within 60 days of the filing of the lawsuit, and the court reviews the claims and the “evidence” presented by the parties on the “probability” issue at a very early stage. Unless the developer can show that there is at least evidence to support the claims, then the complaint is stricken and tossed out.

Hey, not bad. Maybe it is a good idea. In our country, we cherish the right of free speech, which is an essential part of the fabric of our political compact with each other as members of our U.S. society. We don’t want large commercial interests jumping on those who oppose them by filling lawsuits that don’t have merit. The Legislature saw fit to allow courts to “test” these cases at an early stage rather than allow the developer (or others similarly situated) to use its economic clout to beat up on those who oppose its projects and who may not be able to afford a long, drawn out battle. Unfortunately, there have been abuses of the statute, and, in 2003, the Legislature had to pass another statute addressing them. In fact, the Legislature made another “finding”:

The Legislature finds and declares that there has been a disturbing abuse of of . . .the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedome of speech and petition for the redress of grievances, contrary to the purpose and intent of [the statute]. The
Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process or [the statute].

As a result, they exempted from the statute certain types of activity which is on behalf of the general public and which, “if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or non-pecuniary, on the general public or a large class of persons.” How did these abuses occur and what was the Legislature trying to correct by this latest amendment? What happened is that these anti-SLAPP motions were brought by anyone who was sued for libel, slander or related wrongs in connection with commercial activities.

For example, Nike brought an anti-SLAPP motion in a lawsuit brought by a group of citizens to stop it from publicizing untruths about its employment practices (sweat shop type foreign manufacturing sites and abuses in its manufacturing of its products). In 2003, the California Supreme Court held that that motion was improper because Nike was engaging in allegedly false “commercial speech,” which does not get the same First Amendment protection that speaking out on community and political issues does.

Very recently I argued a case before the California Appellate Courts on whether the anti-SLAPP statute applies to a case brought by my client against a major California law firm, which we allege defamed him during a proxy fight over the assets of a then dormant company and which my client founded and ran for several years. Some large corporate interests (the names would be very familiar to you) tried to take over the company so it could gain access to the patents the company owned and use them to develop interactive television programming.

These companies, and their allies, including the law firm’s lawyers, used their economic clout and power to demonize my client before the SEC, in the press and on the internet. Once we filed our lawsuit, we drew an anti-SLAPP motion claiming that all that the defendant lawyers were doing was exercising their right of free speech by communicating to “official” bodies or in “official proceedings” or commenting on a public issue in a public forum (using the internet). It is an interesting case, and challenging, indeed, and the court has some issues that may map out how the statute can be used in this context. If it disallows my client’s case, this may be perceived as another abuse. (The defendants have not denied that the false statements were made by them, with no basis for doing so, essentially admitting they lied in their communications to a federal agency, to the stockholders and to the public for that matter.) The cases have held that someone who writes in a chat room, where there is free access to anyone to comment, even lash out at others using hostile and abusive language, is likely to have the benefit of the anti-SLAPP statute since these means of communicating are open to the public and invite comment on public issues, a good example of free speech being exercised.

Remember, however, that if the statute does apply, it requires the party bringing the lawsuit to meet a “minimalist” test of demonstrating that there is a “probability” of recovery. The lawsuit is not just tossed out. Thus, if there is evidence of merit to the case, the motion to strike must be denied.
The battle over the application of this statute and how it will be applied in the future will be an interesting subject of study for anyone who is interested in and cares about the precious right of Free Speech in our society.

Guy and his wife, Victoria, are long-time residents of our neighborhood where they reared their two, now adult, children, who also live and work in the Bay Area. Guy has his own firm, Guy Kornblum & Associates, where hespecializes in hig- end personal injury, insurance matters, including insurance bad faith, and other civil actions on behalf of plaintiffs who are injured or who are policyholders. He also is a mediator, specializing in early resolution of cases.

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