If shown to be a SLAPP, this certainly would not be the first time a church has SLAPPed a former member for speaking out or petitioning the government — one of the first well-publicized instances of the California anti-SLAPP statute being used involved a suit by the Church of Scientology against a former member.  In any case, this lawsuit will be worth following.

If you are a blogger threatened with legal action or served with a lawsuit filed in California state or federal court, please contact CASP to learn how you can fight back under the anti-SLAPP law.  (And if you are in Illinois, Mr. Skyles certainly appears to know his stuff.)

1.  Demand letter — Often, a SLAPP filer or his/her attorney will send a letter (or email) before filing the lawsuit.  This letter will demand that you cease the speech or petition activity, and will threaten that if you do not, a lawsuit will be filed against you.

2.  Lawsuit is filed with the court — Then, the SLAPP filer or his/her attorney will draft a summons and complaint, and file these documents with the court.  The summons is a court order requiring you to respond to the lawsuit.  The complaint contains the allegations being made against you.

3.  You are served with the lawsuit — In order for the lawsuit to have any effect, it must be served upon you.  Usually, the SLAPP filer/plaintiff is required to serve you personally, meaning that he or she or (more typically) a hired process server must physically hand the summons and complaint to you in person.

4.  Your lawyer files a response to the complaint — You have 30 days from the date of service to file a response to the complaint.  If you do not, the SLAPP filer/plaintiff can ask that the court find you in “default,” meaning that you can no longer file a response to the lawsuit without the court’s permission, and a default judgment may be entered against you.  This means you must move quickly after you have been served to retain an attorney to file your response.  (If you think the lawsuit filed against you is a SLAPP, and you have been sued in California state or federal court, please contact CASP.)

5.  Your lawyer files a special motion to strike (also called an anti-SLAPP motion) — This is the most important part of the case for you as the defendant in the SLAPP.  By filing a special motion to strike with the court, your lawyer is asking the judge to find that the plaintiff has sued you for exercising your free speech and/or petition rights, and that the plaintiff has failed to show that his/her suit has merit.  Depending upon the circumstances of your case, your lawyer may file this motion as your response to the complaint, or he/she may first file a response that is not a special motion to strike (typically an “answer,” sometimes a “demurrer”), and file the special motion to strike later.  Either way, you have 60 days after service of the summons and complaint to file your special motion to strike.  When the motion is filed, your lawyer will set a hearing date with the court.  At the hearing, the judge will decide whether or not to grant your special motion to strike.

6.  The court decides the special motion to strike — Based upon the motion papers, the plaintiff’s opposition papers, the reply papers filed in response to the opposition, and any oral argument at the hearing, the judge will decide whether or not to grant the special motion to strike.  If the special motion to strike is granted, the lawsuit is automatically dismissed, and the defendant has won.  If the motion is denied (not granted), this means the anti-SLAPP law does not apply and the suit will continue on as any typical civil suit does: first, what is called “discovery” will take place, during which the plaintiff will demand information and documents from the defendant, and take the defendant’s deposition; the defendant will also have the right to seek discovery from the plaintiff.  Eventually the lawsuit may go to trial if a settlement is not reached.

7.  Appeals — If they choose to do so, either the plaintiff or defendant in the SLAPP suit may file an appeal of the court’s decision on the special motion to strike.  By filing an appeal, the plaintiff or defendant is taking the case to a higher court (the court of appeals) to determine whether the lower court judge correctly decided the special motion to strike.  Although most appeals are unsuccessful, if the court of appeals finds that the lower court made the wrong decision, the ruling on the special motion to strike will be reversed.

8.  Motion for attorney’s fees and costs — If you are successful on your special motion to strike, you are automatically entitled to the attorney’s fees and costs you incurred defending against the SLAPP.  This means that your attorney will file a motion asking the court to determine the amount of fees and costs to be awarded in your favo, and against the SLAPP filer/plaintiff.  The SLAPP filer must then pay these fees and costs to you and your lawyer as compensation for bringing the SLAPP.  (This award only compensates you for the fees and costs involved in bringing the lawsuit; it will not compensate you for any other damages you may have suffered as a result of being sued.  To recover those damages, you will need to bring a separate lawsuit against the SLAPP filer.)

On a related note, also see our post on what to do when your internet service provider tells you that someone has served a subpoena seeking your personal identifying information.  Often, you will receive a notice like this from your ISP before being served with a SLAPP suit.

Britain’s archaic libel laws (not officially reformed since 1843!) have long been exploited by those seeking to chill the free speech rights of their targets or cash in on a jurisdiction known for both low legal standards for defamation, and large jury verdicts.  This recently led the U.S. to enact the SPEECH Act, which bans domestication of foreign judgments based on speech that would not have been defamatory under U.S. law; enactment of this law was widely considered an embarrassment for the U.K.  Now it seems the British have acted, with the Queen herself (if you can believe it) announcing that a bill would be enacted to curb such abusive suits and tighten the requirements for libel under British law.

Although the text of the bill will not be available until Friday, the outlines of the reform have been made known, and it is interesting to see how another country is addressing the problem of abusive suits aimed at chilling free speech.  For example, a major component of the law will be an early screening procedure — not unlike an anti-SLAPP motion in concept — that will require the plaintiff (or I believe “claimant” in British parlance) to show serious harm arising from the libelous statements before the lawsuit may commence.

The law will also enact broad protections for speech on matters of public interest (the heart of First Amendment free speech protection here in the U.S.), as well as immunity for websites that republish or link to the defamatory statements of others (as we have here under federal law, CDA section 230 [see bottom of page linked; text of the statute here]).

More troubling is the plan to include in the law’s provisions a notice-and-takedown procedure for defamatory statements, apparently designed to avoid the necessity of litigation by requiring that a claimant give notice to a website of the allegedly libelous statements and an opportunity to remove them before taking anyone to court.  This might not be unlike the DMCA takedown notice procedure provided for copyright holders under U.S. law.  Unfortunately, that procedure has become widely abused in very SLAPP-like ways.  One of the stories linked seems to state that the notice-and-takedown procedure would involve some judicial oversight, but it would likely still be subject to abuse.

On the whole, though, it is good to see our neighbors across the pond acting to protect free speech.  Now if only the U.S. government would act on federal anti-SLAPP legislation to further strengthen our First Amendment rights…

However, this line of criticism of the anti-SLAPP law essentially ignores a central feature of the law there from the very beginning, designed to effectively combat just this problem.  Subdivision (c) of the statute provides that a defendant who files a frivolous anti-SLAPP motion, or one intended solely to delay, shall be liable for the attorney’s fees and costs incurred by the plaintiff opposing the motion.  This provision obviously makes an anti-SLAPP motion much less enticing to defense counsel in borderline SLAPP cases, and (usually) works to prevent entirely meritless motions under the statute.

Moreover, it appears that courts are becoming more aggressive lately in awarding sanctions against those who file such frivolous anti-SLAPP motions.  To take one recent example, this past month the Second District issued its opinion in Personal Court Reporters, Inc. v. Gary Rand, et al., awarding sanctions of $22,000 to the plaintiff after defendants filed what the court determined to be a frivolous appeal of an order denying the defendants’ equally frivolous special motion to strike.

The case involved garden variety collection claims, brought by a court reporting agency against attorney Rand and the other partners at his firm for past due invoices for court reporting services.  The defendants responded by filing an anti-SLAPP motion, attempting to argue that the complaint arose from the defendants’ petition activity in advocating on behalf of their clients in depositions and court proceedings.  The trial court and court of appeal summarily rejected this argument, finding, of course, that the plaintiff’s claims arose from the defendants’ failure to pay their court reporting bills, and not from any petitioning activity that occurred in the proceedings the court reporters transcribed.

The problem for the defendants, and the hook used by the Court of Appeal to issue its sanctions, was that these very same defendants had made very similar arguments in a prior case.  That lawsuit, California Back Specialists v. Rand (which also resulted in a published opinion on appeal) was also a collection matter, brought by a group of medical providers to enforce a lien on the proceeds of a personal injury suit won by the defendants on behalf of their clients.  In that case, the defendants had also filed an anti-SLAPP motion, which the trial court denied and deemed frivolous, awarding sanctions against defendants.  The appellate court upheld the trial court’s decision, including its decision on the sanction award.  In Personal Court Reporters, Inc. v. Rand, the Second District court looked none too kindly on another appeal from the same defendants asserting the same arguments in a very similar matter, and found the appeal frivolous and intended solely to delay.

By certifying this decision for publication (and indeed, by certifying the California Back Specialists decision as well, which upheld an award of sanctions), it is clear the court intended to send a message to litigators:  meritless anti-SLAPP motions are a serious abuse and will be punished.

What It Means

First, what it means:  When your internet service provider — whether it be AT&T, Comcast, or another internet provider — tells you that a subpoena has been issued seeking your personal identifying information, this means that some online activity originating from your IP (“internet protocol”) address is potentially relevant in a lawsuit.  (Your IP address is the identifying number your computer uses to access the internet.) Often – but not always – this lawsuit is one for defamation or libel based on comments or reviews made online about a business.  Subpoenas to internet providers are also frequently issued in lawsuits for copyright violations stemming from allegedly illegal filesharing.

Before your internet provider gives you this notice, you may have also received a notice of subpoena from a website you have posted on, like Yelp! or Yahoo or another website that provides an online discussion forum.  You may have received this notice first because, in order to subpoena your internet provider, the party in the lawsuit first must get your IP address from the website where you posted whatever material is relevant to the lawsuit.  Once they know your IP address, they can then subpoena your internet provider to find out the personal identifying information for the account holder who uses that IP address, i.e., who you are, where you live, and other basic information about you that your internet provider has on file.

So those are the legal mechanics of why the subpoena was issued, but why does the party issuing the subpoena need to know your identity in the first place?   There are two reasons why they may want to know who you are and how to contact you:  (1) The party issuing the subpoena is seeking your personal information so that you can be named as a defendant in the suit and be served with a summons and complaint, i.e., sue you (worst case scenario).  Or, (2) the party issuing the subpoena wants you to serve as a witness in the lawsuit, by either providing testimony and/or producing documents or electronically stored information relevant to the lawsuit.

By looking at the subpoena itself, you may be able to get enough information to figure out which of these two situations applies to you.

Initially, you will note that the subpoena gives you the name and contact information for the lawyer who issued the subpoena.  DO NOT CONTACT THIS LAWYER OR ANYONE ELSE IN THE LAWYER’S OFFICE.  If you do, you will have given away your identity.  However, do make a note of which party the lawyer issuing the subpoena represents.

Next, look at who the plaintiff and defendant are.  If the plaintiff is a company or individual you have recently written a bad review of on Yelp! or Yahoo or RipoffReports.com or another website, and the lawyer issuing the subpoena represents the plaintiff, chances are the plaintiff is trying to sue you.  This is especially likely if the defendant is listed on the subpoena as “Does 1-10″ or something similar — a Doe is an unnamed defendant that the plaintiff can later amend the complaint to add once he or she knows the Doe’s real name.

However, just because you do not recognize the plaintiff’s name, or there is already a defendant or defendants not named “Doe,” does not mean you are not being sued.  It’s possible the plaintiff has sued many people by name already, and is seeking to add you as a new defendant in a larger lawsuit.

The subpoena will also give you the name of the court where the lawsuit is filed and the lawsuit’s case number.  This information is also very important to figuring out why someone wants to know who you are.  By going to that court’s website and clicking on the link for “Civil Register” or “Online Case Information,” you may be able to view the complaint and other documents in the lawsuit.  The complaint will tell you the allegations that are the basis of the suit, and thus possibly why the plaintiff (or another party) is looking for you.  If the court’s website does not let you view the complaint, you can also try contacting the court clerk to find out how you can view a copy of the complaint in person (assuming the courthouse is near where you live).

What You Can Do

Now that you know all this, what can you do to prevent your internet provider or the website where you posted a review from giving away your personal information or your IP address?  Fortunately, you do have rights in this situation.  However, you need to move quickly to take advantage of those rights.

Just because a subpoena was issued by a court or a lawyer does not mean it should have been issued or was issued properly.  You may have the right to file what is called a “motion to quash” the subpoena in court.  If the court grants that motion, then the subpoena is void and your information will remain undisclosed.

There are a variety of legal objections you can raise to quash the subpoena.  For example, California law provides that any subpoena issued by a California court regarding an out-of-state lawsuit that arises from an exercise of First Amendment rights – i.e., participating in an online discussion about an issue of public interest – is subject to a motion to quash, unless the plaintiff can show the lawsuit has merit.  The subpoena may also seek information that is not relevant to the lawsuit, in which case it may also be quashed.  These are by no means the only grounds for filing a motion to quash, however.

In order to file a motion to quash, the most important thing you need to do is CONTACT A LAWYER AS SOON AS POSSIBLE.  (We here at CASP may be able to help you, especially if the lawsuit stems from an online review you wrote or you might be accused of writing.  Contact us here.)  It takes time for a lawyer to determine whether a motion to quash is appropriate in your case; it then takes even more time to prepare the necessary paperwork in support of the motion to quash.  A few days before the due date listed on the subpoena for production of the information by your internet provider will not be enough time.  Moreover, the longer you wait, the more likely the court will be to consider your motion to quash untimely.  Courts do not like to help those who sleep on their rights.

Finally, for more information, check out the Electronic Frontier Foundation’s more in-depth FAQ about subpoenas here.  EFF’s discussion is especially relevant if you think your information is being subpoenaed because of any file-sharing activities you may have engaged in through BitTorrent or similar programs.

Such tactics certainly bear a strong similarity to those of the SLAPP filer.  Meritless DMCA take-down notices are an abuse of the legal system aimed at chilling the exercise of First Amendment rights, just like a SLAPP.  Unfortunately, as matters currently stand, DMCA take-down noticers of Limbaugh’s stripe can go so far as to take their meritless copyright claim to court and drag the innocent poster through months and years of costly litigation until she agrees to stop exercising her free speech rights — unless, of course, Congress enacts federal anti-SLAPP legislation, or the noticer is foolish enough to bring suit in state court in a state like California with a strong anti-SLAPP law.

In the past week or so, an online brouhaha has swelled in response to the Arizona legislature’s passage of a bill that would criminalize any “harassing” and “obscene” communications over the internet.  Specifically, the law would make it “unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”  (Full text of the bill here.)  Free speech activists immediately protested that the law’s extremely broad language would essentially outlaw vast swathes of constitutionally protected online speech, in violation the First Amendment; some even claim the law could “shut the internet down” if upheld and enforced as currently written.  See Media Coalition’s excellent letter urging Arizona governor Jan Brewer to veto the bill for a summary of the obvious constitutional issues with the bill as currently drafted.

In response, Arizona legislators pulled back, and promised to revise the bill before putting it to a final vote.  The changes, according to Rep. Ted Vogt, the bill’s co-sponsor, would narrow the proposed statute’s application to clarify that the law would exempt constitutionally protected speech, apply only to situations in which “an individual is targeting another specific individual or group of individuals,” and specify that the communication must be “coupled with a course of conduct.”

The proposed changes strike me as woefully insufficient.  The exception for constitutionally protected speech would do nothing to actually dissuade prosecutors from enforcing the law against protected speech, until such time as a court finds the speech in question actually is constitutionally protected — it’s an exception with virtually no meaning as the law would likely be applied.

Second, prosecutors could argue that many types of online speech, even though available for everyone to see on the internet, in fact are “targeted” at a particular individual or group.  An obscene parody of a public figure, for example — along the lines of what the television show South Park does frequently with everyone from Tom Cruise to Michael Moore — could be viewed as “targeting” that individual, even if the point is to parody that individual to the public at large.  The proposed Arizona statute would still outlaw such speech as long as it could be read as being directed toward a single person or group.

A “course of conduct” exception would get the bill closer to constitutionality, but still probably fall short, because — as I have noted here — conduct is often protected as speech, and indeed, much protected speech takes the form of provocative conduct.  The course of conduct would have to be defined very narrowly as violent or physically threatening conduct.

Sadly, as Ken Paulson at the First Amendment Center points out, the political gains to be made by politicians from passing bills like this one will still remain, even if this particular bill fails or is properly amended to address constitutional concerns.  Politicians do not always worry about the constitutionality of a bill; rather, their first concern is whether their constituents and allies will be pleased by its passage.  If only we could convince legislators to “think of liberties first, then draft bills,” as Paulson urges.

EDIT: It appears the Arizona legislature has put forth an amended bill with the proposed revisions more or less as their members had indicated.  (See it here.)  I am still not so sure it would survive constitutional scrutiny, for the same reasons I discuss above, and as Eugene Volokh discusses briefly on the Volokh Conspiracy today.

California law has long been clear that any statements made before an official government proceeding are immune from liability — meaning that you cannot be sued for statements you make to a government body, including a court, a regulatory agency, or the police. (See Civil Code section 47(b), Hagberg v. California Federal Bank, 32 Cal.4th 350.)  The relationship between this absolute immunity, called the litigation privilege, and the anti-SLAPP law is a strong and complementary one: the anti-SLAPP law in California allows lawsuits that seek to punish those who speak out to their government to be dismissed at an early stage, before such abusive suits can put a defendant through the time and expense of fighting off such a meritless suit.  The anti-SLAPP law provides a procedural tool for protecting this right to petition, while the litigation privilege provides the substantive law barring liability for exercising this right.

Until now, the law was less clear on the federal level, where the circuit courts were split on whether immunity from suit under 42 U.S. Code section 1983 for witnesses testifying before a grand jury was absolute (as in California), or whether it was only conditional, meaning you could still be sued for testifying falsely if the statements were made with malice (i.e., with knowledge or their falsity and an intent to harm).  The Court ruled that such immunity should be absolute, reasoning that, in order for courts and the justice system to do their jobs effectively, witnesses must be able to testify freely without fear of civil liability — the same reasoning followed by the California Supreme Court in Hagberg and other cases.