Anti-SLAPP statute

California

Overview

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 Legislature enacted Code of Civil Procedure §425.16, the California anti-SLAPP 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 itscurtailment.'"

Two-Step Analysis

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 plaintiffs 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." If the plaintiff does not meet this burden, the defendants' motion must be granted.

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.