2012 Marks 20 Years of Protections Against SLAPPs
Since 1991, the California Anti-SLAPP Project has organized broad support for California’s anti-SLAPP law, leading to its enactment in 1992 and subsequent amendments strengthening the law. Despite opposition along the way, CASP has helped California’s anti-SLAPP law become one of the country’s strongest state laws protecting free speech and petition activity. As 2012 marks the twenty-year anniversary of the enactment of the law, we take a look back at twenty of the most significant moments in the law’s history:
California Anti-SLAPP Bill Signed Into Law
California’s third attempt at an anti-SLAPP law contained both anti-SLAPP provisions and additional provisions relating to protections of volunteer officers and directors of nonprofit organizations (Senate Bill 1264 (Lockyer)). CASP and Sen. Lockyer mobilized broad support, including supporters allied with Gov. Wilson, to urge him to sign the bill. Like the two before it, this bill overwhelming passed the Legislature and, this time, was signed into law by Governor Wilson.
First Published Opinion
The Court of Appeal, Second District, issued the first published opinion addressing C.C.P. 425.16 in Wilcox v. Superior Court (1994) 27 Cal.App.4th 809. The opinion contained a detailed discussion of the reason for the anti-SLAPP law and how it worked, and held that a cross-complaint was subject to an anti-SLAPP motion.
First Major Amendment to Anti-SLAPP Law
C.C.P. 425.16 was amended (Senate Bill 1296 (Lockyer)) in light of appellate court opinions that had narrowly construed application of the statute’s protection for petition and petition related activity. In amending the statute, the Legislature clarified its intent that any conduct in furtherance of the right of petition is protected under the anti-SLAPP law and that the statute shall be construed broadly. It also added subdivision (e)(4) to the law, which protected expressive conduct.
January 21, 1999
First California Supreme Court Decision
Following the 1997 amendment, the California Supreme Court in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (its first case involving the anti-SLAPP law), held that the anti-SLAPP statute is to be construed broadly and covers any lawsuit arising from the exercise of the right to petition the government, regardless of whether the issue involved was an issue of public interest.
Ninth Circuit Holds Anti-SLAPP Law Can Be Used in Federal Court
In United States ex rel. Newsham v. Lockheed Missiles and Space Company (9th Cir. 1999) 190 F.3d 963, the Ninth Circuit Court of Appeals held that the applicability and fees subdivisions of the California anti-SLAPP statute do not conflict directly with Federal Rules of Civil Procedure and thus are applicable in federal diversity actions. Lockheed set an important precedent that California’s anti-SLAPP statute can be used in federal court to challenge non-federal claims. Shortly thereafter, Globetrotter Software, Inc. v. Elan Computer Group, Inc. (N.D. Cal. 1999) 63 F.Supp.2d 1127, and later, Restaino v. Bah (In re Bah) (B.A.P. 9th Cir. 2005) 321 B.R. 41, held that federal claims in federal courts are not subject to Claifornia’s anti-SLAPP law. Later cases also clarified that the anti-SLAPP law does not supersede federal standards regarding the availability of discovery (Metabolife Intern., Inc. v. Wornick (9th Cir. 2001) 264 F.3d 832) and the right to amend a complaint. (Verizon Del., Inc. v. Covad Communs. Co. (9th Cir. 2004) 377 F.3d 1081)
Amendment Allowing Immeadiate Appeal
Under the original statute, a defendant whose special motion to strike a complaint was denied could challenge the denial only through a petition for a writ in the Court of Appeal. Writs are discretionary, disfavored, and rarely successful. If, however, a plaintiff’s complaint were dismissed pursuant to a special motion to strike, the plaintiff was able to appeal the dismissal immediately. Thus, the statute was amended (Assembly Bill 1675 (Assembly Judiciary Committee)) to give the SLAPP target — the person whom the anti-SLAPP law was designed to protect — the same ability as the filer of the SLAPP to challenge an adverse trial court decision.
California Supreme Court Addresses Attorney Fees
In Ketchum v. Moses (2001) 24 Cal.4th 1122, the California Supreme Court allowed for a fee enhancement for contingent risk (contrary to the federal rule). Additionally, the court held that a party who prevails on an anti-SLAPP motion and is awarded fees is also entitled to recover fees incurred in collecting the award.
Court Rules on Cyber-SLAPPs
In the first anti-SLAPP decision involving online speech, Global Telemedia International Inc. v. Doe et al. (C.D. Cal. 2001) 132 F. Supp. 2d 1261, the court held that California’s anti-SLAPP statute applies to a lawsuit based on statements written on a financial message board.
California Supreme Court Issues Three Anti-SLAPP Decisions in One Day
On August 29, 2002, the California Supreme Court issued three decisions relating to the anti-SLAPP statute, Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, City of Cotati v. Cashman (2002) 29 Cal.4th 69, and Navellier v. Sletten (2002) 29 Cal.4th 82. Generally strengthening anti-SLAPP protections, the court held that a defendant filing an anti-SLAPP motion does not have to show that a SLAPP was filed with intent to chill free expression or that it has a chilling effect.
California Supreme Court Holds that Malicious Prosecution Actions Are Subject to the Anti-SLAPP Law
In Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, the California Supreme Court held that a malicious prosecution action is not exempt from scrutiny under the anti-SLAPP law.
Exemptions to the Anti-SLAPP Law – CCP 425.17
In response to a “disturbing abuse of Section 425.16,” the Legislature enacted C.C.P. 425.17 (Senate Bill 515 (Kuehl)), adding exemptions to the anti-SLAPP law. 425.17 prohibits anti-SLAPP motions to challenge certain public interest lawsuits and to claims that arise from commercial speech or conduct.
California Supreme Court Rules on Stays Pending Appeal
In Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, the California Supreme Court held that an appeal from a denial of an anti-SLAPP motion stays the trial court proceedings on related matters while that appeal is pending.
SLAPPback Claims – CCP 425.18
The Legislature enacted C.C.P. 425.18 (Assembly Bill 1158 (Lieber)) to allow SLAPP victims to recover their damages through a SLAPPback suit against the SLAPP filers and their attorneys, once the underlying SLAPP has been dismissed. The amendment was enacted in part to overrule the decision by the California Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, which held that the trial court’s erroneous denial of an anti-SLAPP motion constituted probable cause for filing and maintaining a SLAPP, thereby preventing the SLAPP victim from pursing a SLAPPback to seek redress.
California Supreme Court Rules on Privileged Acts
In Rusheen v. Cohen (2006) 37 Cal.4th 1048, the California Supreme Court held that when the gravamen (primary thrust) of the complaint is a privileged communication (i.e., allegedly perjured declarations of service), the privilege extends to necessarily related noncommunicative acts (i.e., act of levying to collect a debt).
California Supreme Court Creates an “Illegal as a Matter of Law” Exception
In Flatley v. Mauro (2006) 39 Cal.4th 299, the California Supreme Court held that if a defendant either concedes, or the plaintiff conclusively demonstrates, that the defendant’s alleged protected speech or petition activity is illegal as a matter of law, that activity is not protected by the anti-SLAPP statute.
California Supreme Court Rules on Federal Protections for Internet Intermediaries
In Barrett v. Rosenthal (2006) 40 Cal.4th 33, the California Supreme Court held that a plaintiff’s claims should be dismissed under the anti-SLAPP statute when the defendant only republished the words of another on the Internet, and thus is protected from civil liability by section 230 of the federal Communications Decency Act, 47 U.S.C. §230.
Amendment Protecting Against Long-Arm SLAPPs: CCP 1987.1 and 1987.2
On September 30, 2008, Assembly Bill 2433 (Krekorian), which enacted protections for anonymous speech online, was signed into law. Co-sponsored by the Electronic Frontier Foundation, the California Anti-SLAPP Project, and the California Newspaper Publishers Association, amended CCP 1987.1 and 1987.2 to allow speakers to oppose the use of meritless out-of-state litigation to obtain their identities from California Internet service providers.
California Supreme Court Rules on Scope of the Public Interest Exemption
In Club Members for an Honest Election v. Sierra Club (2008) 45 Cal. 4th 309, the California Supreme Court held that a plaintiff’s lawsuit must be brought solely in the public interest in order for the public interest exemption to CCP § 425.16 (embodied in CCP § 425.17(b)) to apply. A claim that seeks personal relief that is different from the relief sought for the class is not exempt under the statute.
Amendment on Fees Relating to Public Records Act and Opening Meetings Law
The statute was amended to add section 425.16(c)(2) (SB 786 (Yee)), which provides that a defendant who prevails on an anti-SLAPP motion against claims of violation of the public records act or open meetings law may not be awarded fees.
California Supreme Court Issues Ruling on Commercial Speech Exemption
In Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, the California Supreme Court held that the commercial speech exemption to the anti-SLAPP statute (in CCP § 425.17(c)), did not apply to a lawsuit arising from published notices for class action suits. The Court also held that exemptions to the anti-SLAPP law should be construed narrowly.