In 1992, in response to the "disturbing increase" in meritless lawsuits brought "to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances," the California legislature enacted Code of Civil Procedure §425.16, the California anti-SLAPP statute. It applies to any cause of action arising from an "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." The statute was designed to permit the prompt dismissal of a SLAPP lawsuit prior to discovery unless the plaintiff can meet the stringent criteria set forth in the statute.
In 1997, the Legislature unanimously amended the statute to expressly state that it "shall be construed broadly." Section 425.16(a) provides:
|“||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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and this participation shouls not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.||”|
In 1999, the California Supreme Court directing that courts, "whenever possible, should interpret the First Amendment and section 425.16 in a manner 'favorable to the exercise of freedom of speech, not to its curtailment.'"
Section 425.16 sets forth a two-step process for evaluating a special motion to strike. First, the defendants must make a prima facie showing that the plaintiff's cause of action arises from an act of the defendants in furtherance of the right of petition and/or the right of free speech in connection with a public issue. Once the defendants make this showing, the burden shifts to the plaintiff to establish a probability of prevailing on its claims by establishing that "the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment." Plaintiff must meet this burden with "competent, admissible evidence." If the plaintiff does not meet this burden, the defendants' motion must be granted, and the defendant is entitled to recover its attorneys' fees and costs from the plaintiff.
Scope of Covered Acts
Subdivision (e) of the anti-SLAPP statute provides four illustrations of the types of acts covered by the statute:
|“||(l) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.||”|
Subdivision (e)(3)'s requirement that the defendants' challenged activity be "'in connection with an issue ofpublic interest' . . . is to be 'construed broadly' so as to encourage participation by all segments of our society in vigorous public debate related to issues of public interest."Internet bulletin boards and chat rooms are considered public fora, as are websites.
- Stats. 1992, ch. 726, §2.
- Cal. Code Civ. Proc. §425.16(b)(1), (e).
- Stats. 1997, ch. 271, §1; amending §425.16(a).
- Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106, 1119, 969 P.2d 564, 81 Cal. Rptr. 2d 471 (1999)(full-text), quoting Bradbury v. Superior Court, 49 Cal.App.4th 1108, 1114 (1996)(full-text).
- The phrase "arising from" in §425.16(b)(1) has been interpreted to mean that "the act underlying the plaintiff's cause" or "the act which forms the basis for the plaintiff's cause of action" must have been an act in furtherance of the right of petition or free speech. See Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1417, 103 Cal.Rptr.2d 174 (2001)(full-text).
- Cal. Code Civ. Proc. §425.16, subd. (b)(1); Navellier v. Sletten 29 Cal.4th 82, 88, 52 P.3d 703, 124 Cal. Rptr. 2d 530 (2002)(full-text); Wilbanks v. Wolk, 121 Cal.App.4th 883, 894, 17 Cal. Rptr. 3d 497 (2004)(full-text).
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821, 123 Cal. Rptr. 2d 19 (2003) (full-text) (citations and internal punctuation omitted).
- Ludwig v. Superior Court, 37 Cal.App.4th 8, 15-16, 21 nn.16, 25, 43 Cal. Rptr. 350 (1995)(full-text).
- Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180, 192, 106 P.3d 958, 25 Cal. Rptr. 3d 298 (2005)(full-text).
- Seelig v. Infinity Broadcast. Corp., 97 Cal.App.4th 798, 808, 119 Cal. Rptr. 2d 108 (2002)(full-text) (radio "shockjock" commentary about plaintiffs decision to appear on Who Wants to Marry a Multimillionaire? television show was made in connection with an issue ofpublic interest and is covered under § 425.16).
- ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1006-07, 113 Cal. Rptr. 2d 625 (2001)(full-text)
- Wilbanks, 121 Cal.App.4th at 895.