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The Problem Presented by SLAPPs in California

The problem presented by SLAPPs in California can take three forms:

  1. A person writes a negative Yelp! review about a California business, and that person is then sued for defamation.
  2. Another person speaks out to the planning commission against a building project. That person is then sued for interfering with the contract.
  3. A person who won the first lawsuit files a second lawsuit against the people that sued him.

Each of these scenarios is an example of a potential SLAPP – or Strategic Lawsuit Against Public Participation. And each presents a problem: what is a defendant supposed to do to ward off a potentially frivolous lawsuit that could cost hundreds of thousands of dollars in attorney’s fees and take years to resolve? The answer is an anti-SLAPP law. First passed in 1992, California’s anti-SLAPP (strategic lawsuit against public participation) statute is designed to address this problem. California’s anti-SLAPP law, at Code of Civil Procedure, section 425.16, allows civil defendants in free speech matters to “cut the line,” get an early hearing on the merits of the case and if the anti-SLAPP motion is successful, the person who filed the lawsuit must reimburse the civil defendant for all attorney’s fees spent.

The First Amendment and Anti-SLAPP

The First Amendment of the Constitution protects the right of free speech and the right to petition the government for redress of grievances (such as filing lawsuits or communicating with politicians). While the interpretation of this phrase is often used very liberally, the First Amendment forbids the government from limiting anyone’s freedom to speak his or her mind with rare and narrow exceptions. Statements that are true or opinion are protected by the First Amendment. Speech constituting illegal conduct is not. There is no First Amendment right to defame another. This is where California’s anti-SLAPP statute and the First Amendment collide.

A party who believes that they have been harmed by the free speech of another may threaten and intimidate the speaker with the burden of legal fees, by way of filing a lawsuit against the speaker, unless or until they cease their opposition and stop speaking out against the cause. This is an unfair tactic of silencing individuals who deserve to have their voices heard. The anti-SLAPP law is intended to end these types of lawsuits swiftly. Anti-SLAPP law’s fee shifting also presents a disincentive to those contemplating filing frivolous lawsuits.

The Anti-SLAPP Motion Process

A person sued for defamation or other activity protected by the First Amendment has 60 days to respond with an anti-SLAPP motion. Once filed, the plaintiff must respond with admissible evidence that the case has merit – such as proof that statements made by the defendant were false. If the plaintiff cannot prove the minimal merit of the case, the court will order the lawsuit dismissed. If the plaintiff proves the case has minimal merit, the case can proceed unless the defendant takes an immediate appeal. An important component of the anti-SLAPP motion process is the stay of discovery. Discovery is the process of asking written questions, in-person questions (known as depositions), and document requests. It can cost tens of thousands of dollars for parties in litigation. When an anti-SLAPP motion is filed, discovery is stayed absent court order.

Online Reviews And Websites

Anyone with a smartphone can express their opinion about a business online through review sites such as Yelp!, RipOffReport and Google reviews. When reviews are negative, individuals and businesses may threaten legal action against the reviewer, effectively intimidating them into withdrawing the negative review or changing it so it is not negative. California’s anti-SLAPP law may in several respects protect those who have been wrongfully sued by parties wishing to strong-arm them into ceasing the negative vocalization of their experience. While each case is different and there are no guarantees, California’s anti-SLAPP law can help get cases dismissed.

The First Amendment and Public Figures

A plaintiff who is a public figure – such as a celebrity or politician – who files a defamation action has a higher burden of proof. Such a plaintiff must prove that the defendant made a false statement of fact knowing it was not true – also known as “malice.” In the context of an anti-SLAPP motion, when a defendant files an anti-SLAPP motion, the plaintiff must prove immediately with evidence not only that there were false statements made but that the defendant knew it was not true. This is a difficult standard to meet and can make an anti-SLAPP motion more potent.

Not Just Free Speech

The anti-SLAPP law goes beyond free speech rights. Other conduct – such as the filing of a lawsuit itself – is protected as the right to petition the government for redress of grievances. For example, in a pending lawsuit, if a cross-complaint is filed that is based primarily on the filing of the complaint, anti-SLAPP law may be implicated.

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