In the present case, the objective tenability of the Del Prado partnership's libel and economic interference claims must be tested in light of the activity which gave rise to those claims -- Lucas' comments in the midst of a local political struggle over rent control for mobilehome park residents. Those comments were protected from tort claims by freedoms guaranteed under the federal and state constitutions, including the right to petition, freedom of the press, and freedom of speech. Indeed, to allude to the Flaherty test as incorporated by Sheldon Appel, no reasonable attorney would press tort claims against Lucas for statements in a newsletter without
at least first considering whether he was constitutionally immune from them.
We need not address freedom of the press or freedom of speech, because it is clear, and should have been clear to any reasonable attorney, that Lucas' comments were protected by his right to petition as guaranteed by the federal constitution. [FN13]
In Pennington, a union and a group of large coal companies jointly lobbied the Secretary of Labor for a high minimum wage for employees of contractors selling coal to the TVA; their success meant that smaller, nonunion coal companies would have a difficult time competing for the TVA contract market. (Pennington, supra, 381 U.S. at p. 660, 85 S.Ct. at p. 1588.) In a lawsuit brought by the union concerning certain royalty payments due a retirement fund, a coal company filed a cross claim against the union for conspiracy to restrain trade. The jury was instructed that the joint lobbying of the Secretary of Labor was legal unless it was done as part of a conspiracy to drive small coal companies out of the business. The instruction was error, held the high court, because the Noerr decision "shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." (Id. at p. 670, 85 S.Ct. at p. 1593, emphasis added.)
In a word, both cases afforded broad immunity for petitioning activity. And, while the two cases arose out of antitrust claims, the broad immunity for petitioning activity encompassed by the Noerr-Pennington doctrine in the antitrust context applies to defamation and economic interference claims as well. As stated in Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 29 Cal.Rptr.2d 646, "While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability [citations], including liability for interference with contractual relations or prospective economic advantage [citations] or unfair competition [citation]. Obviously, the 'principle of constitutional law that bars litigation arising from injuries received as a consequence of First Amendment petitioning activity [should be applied], regardless of the underlying cause of action asserted by the plaintiffs.' [Citation.] '[T]o hold otherwise would effectively chill the defendants' First Amendment rights.' [Citation]." [FN15] (Id. at pp. 577-578, 29 Cal.Rptr.2d 646.)
The McDonald court was clearly reluctant to extend petition clause protections to malicious lies made under the guise of petitioning the government. The opinion is essentially a reaffirmation of an 1845 decision which concluded a customs inspector could proceed in a libel suit for lies
set forth in letters to the President of the United States as long as there was " 'express malice.' " (See McDonald, supra, 472 U.S. at p. 484, 105 S.Ct. at pp. 2790-2791, quoting White v. Nicholls (1845) 44 U.S. (3 How.) 266, 291, 11 L.Ed. 591.)
The United States Supreme Court may one day explain how McDonald's rule that the petition clause does not immunize a petitioning party for activity in which there is "express malice" may be reconciled with Pennington's rule that an effort to influence public officials could not be the subject of antitrust liability regardless of intent or purpose. Perhaps the answer is as simple as the difference between antitrust and libel.
In any event, the Noerr-Pennington doctrine -- even in the light of McDonald -- forces a reasonable attorney to conclude there is at least a need for actual malice before proceeding in a tort action based on activity within the petition clause. That need for actual malice is analogous to the traditional and familiar rule of New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 where a defamation plaintiff is a public figure. Indeed, the appropriateness of the Sullivan standard to petition clause cases was the very point of Justice Brennan's separate concurring opinion in McDonald: "There is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States. It necessarily follows that expression falling within the scope of the Petition Clause, while fully protected by the actual-malice standard set forth in New York Times Co. v. Sullivan, is not shielded by an absolute privilege." (McDonald, supra, 472 U.S. at p. 490, 105 S.Ct. at p. 2794, emphasis added (conc. opn. of Brennan, J.); see also Harris v. Adkins (1993) 189 W.Va. 465, 432 S.E.2d 549, 552 [petition right "protected by actual malice standard of New York Times Co. v. Sullivan ...."].)
We now turn to the application of these federal constitutional doctrines in the slapp-suit context. Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 43 Cal.Rptr.2d 350 recently applied Noerr-Pennington to reach the conclusion that speaking out at a city council meeting was wholly protected by the petition clause. There, in a twist on the usual pattern, a city sued a developer for economic interference and unfair competition for having encouraged two individuals to speak out at a city council meeting against a competing development project favored by the city. The Court of Appeal held the developer was entitled to a dismissal under the anti-slapp suit statute, relying on Noerr-Pennington:
The court agreed with the activists. It held that the newsletter was a "petitioning activity," relying on the facts in the Noerr case itself--which also involved a publicity campaign, albeit on a somewhat bigger scale than the environmentalists' humble efforts. (See Webb, supra, 282 S.E.2d at p. 41.) The court noted that Noerr-Pennington had been applied by a series of federal courts to communications addressed to the public. (Id., 282 S.E.2d at pp. 41-42, citing and discussing Mark Aero, Inc. v. Trans World Airlines, Inc. (8th Cir.1978) 580 F.2d 288, 297; Missouri v. National Organization For Women (8th Cir.1980) 620 F.2d 1301, 1314; Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers (9th Cir.1976) 542 F.2d 1076, 1083.) The Webb court then declared, "It seems clear to us that the statements published by the petitioners come within the immunity conferred under Noerr-Pennington. The portions of the newsletter which are reproduced in the respondent's complaint indicate an exhortation to the public to demonstrate concern for rapidly expanding surface mining and the resulting pollution of the area's waters. It is apparent to us that the newsletter here should be viewed in the context of a public campaign to 'influence the passage and enforcement of laws.'" (Webb, supra, 282 S.E.2d at p. 42.) [FN18]
FN20. It may be that the practical result of the Noerr-Pennington doctrine after McDonald is to extend the New York Times v. Sullivan actual malice protection to situations which might not otherwise enjoy that protection under a free speech or free press standard.
The core error of the trial court was to ignore context. As the trial court's own remarks indicated, it considered Lucas' statements in a vacuum and without regard to their role in the bitter and highly charged local political battle then being fought over a specific piece of controversial legislation. [FN21]
We are spared the task, imposed on all judges by the Bose decision, of independently determining whether there exists here a sufficient quantum of proof of actual malice to have made the libel and economic interference actions objectively tenable. In the present case, the Del Prado partners did not even attempt to present "clear and convincing proof of 'actual
malice.' " Their efforts were directed below, as they are before this court, at trying to demonstrate that the actual malice standard was not necessary because their initial lawsuit involved only private communications between private parties. Given the absence of such proof, the trial judge should have denied their nonsuit motion.
The leading United States Supreme Court cases on immunity for activities covered by the petition clause of the First Amendment are Eastern R. Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 and United Mine Workers of America v. Pennington (1965) 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. These two cases form the basis of what is often referred to in the case law as the "Noerr-Pennington doctrine." [FN14]
In Noerr, a group of railroads conducted a publicity campaign against the trucking industry designed "to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers." (Id., 365 U.S. at p. 129, 81 S.Ct. at p. 525.) The truckers struck back with an antitrust suit, charging that the campaign was maliciously designed to destroy them as competitors. Even though the railroads acted "to destroy the goodwill of the truckers among the public generally and among the truckers' customers particularly," the antitrust laws could not be applied to the railroads' campaign. "It is inevitable," said the court, "whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns." (Id. at pp. 142-144, 81 S.Ct. at pp. 532- 533.)
There is some doctrinal tension as to how far the outer limits of the broad immunity afforded by Noerr-Pennington for petitioning activity extend. In a case which never considered Noerr-Pennington at all, McDonald v. Smith (1985) 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384, the United States Supreme Court held that false statements sent to a variety of public
officials in an effort to stop a particular candidate from being appointed a United States Attorney were not immune from a subsequent libel action because the statements were made maliciously.
The Ludwig court went on to explain that unless the petitioning action which gave rise to the suit was both (a) done solely to harass and hinder the other party (as distinct from "securing a favorable governmental result") and (b) "objectively baseless," it was protected from litigation. (Id. at p. 22, 43 Cal.Rptr.2d 350.) "Absent such a patent lack of merit, an action protected under the First Amendment by the right of petition cannot be the basis for litigation." (Ibid., citing Real Estate Investors, supra, 508 U.S. at pp. 61-63 [113 S.Ct. at p. 1929, 123 L.Ed.2d at pp. 623-624].) Because the city in Ludwig utterly failed to show that the comments of the two citizens who spoke out at the city council meetings were objectively baseless, [FN17] the city had no ground to litigate against the party who arranged for them to do it. (Ludwig, supra, 37 Cal.App.4th at p. 23, 43 Cal.Rptr.2d 350.)
[FN16] That point may be debatable: Section 425.16 requires that a suit which arises out of an act stemming from the free speech or petition right must have "demonstrable merit" to get to a jury; other suits are not so encumbered. Whether California's anti-slapp statute is, in effect, a new rule of substantive law, singling out for special statutory protection the exercise of certain first amendment rights, is another question we leave for the law reviews.
Perhaps the clearest (and closest to the facts before us), example of Noerr-Pennington in a slapp context is the oft-cited decision of the West Virginia Supreme Court in Webb v. Fury (1981) 167 W.Va. 434, 282 S.E.2d 28, a case decided before McDonald. Webb, like the present case, involved allegedly libelous statements made in a newsletter about the legality of certain conduct. There, environmental activists falsely complained to several federal agencies that a certain coal company was violating federal law governing strip mining. They also published a four-page newsletter, the first page of which contained a map falsely identifying the coal company's mines as the source of pollution of various streams. The coal company sued the activists for libel; the activists claimed that their activities, including their newsletter, were privileged under the petition clause. (See id., 282 S.E.2d at pp. 31-33.)
In the present case, it also is ineluctably clear that Lucas' various charges against the new owners of the mobilehome park, and his exhortations against signing long-term leases, were even more a part of a campaign protected by the petition clause than the railroads' generalized anti-trucking campaign in Noerr, or the accusations of coal company malfeasance made by the environmentalists' newsletter in Webb. Here, much more than in either Noerr or Webb, there was specific pending legislation to which the petitioner's efforts were palpably directed. Lucas' remarks in that campaign were nothing less than an attempt to rally his troops for battle and steel them against the blandishments of the enemy.
"The burden of proving 'actual malice,' " said the United States Supreme Court in Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 511, footnote 30, 104 S.Ct. 1949, 1965, footnote 30, 80 L.Ed.2d 502, "requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized his statement was false or that he subjectively entertained serious doubt as to the truth of his statement." Moreover, actual malice as part of the New York Times v. Sullivan rule is not entirely a question of fact for the trier of fact--judges must exercise independent judgment to insure that the evidence is sufficiently potent to justify any finding of actual malice. As the court said in Bose: "The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.' " (Bose, supra, 466 U.S. at p. 511, 104 S.Ct. at p. 1965, italics added.)
The judgment is reversed. Lucas is to recover his costs on appeal.
CROSBY and WALLIN, JJ., concur.