Have you been hit with a SLAPP suit?

Back in 1995 I visited an attorney with the intent of filing a lawsuit against former Mission Viejo mayor Joseph D. Lowe for defamation and other charges relating to my 1994 campaign. The attorney gave me the good news/bad news response saying that I could not sue him nor could he sue me.  At the time, without questioning him, I accepted his advise and simply chalked it up and moved on. As I draft this story I guess he was referring to CA Code of Civil Procedure section 425.16 anti SLAPP protection Chaptered in 1993 (that I will provide at the end of this story).

Last year a property rights colleague in Riverside County told me that he was hit with a SLAPP suit,  a term I was not familiar with. This leads me to yesterday’s Juice post entitled “accusing public officials of abusing their influence is not defamation.”

I revisit this issue today in light of the large number of major newspapers who are dropping their daily printed publications. Anyone who has read my recent posts know that I fully support the existence of the print media from whom we get most of our stories. The print media must continue to “freely” function with their presses running without any federal bailouts. Senior Editorial Writer and Columnist Steve Greenhut of the Orange County Register covered that issue in his editorial on Sunday.

Although we were in Russia a few years ago I could not find any copies of Pravda, the controlled publication of the former Soviet Communist Party that was shut down in 1991.

I surely do not wish to see the day our federal government controls the press. It is worth noting that we did find international papers at our hotels in Moscow and St. Petersburg including USA Today. A “free press” in America is vital to keep our elected officials accountable.
Let me go back to the SLAPP Suit. What is a SLAPP anyway?

“Strategic Lawsuits Against Public Participation–are civil complaints or counterclaims (against either an individual or organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution. SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals who oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.

The First Amendment Project provides some valuable information on this topic. On their web site they state that “the United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights.”

CA Code of Civil Procedure section 425.16 anti SLAPP protection

425.16.  (a) 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 and petition for the redress of grievances.  The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.  To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of  that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

(2) In making its determination, the court shall consider the  pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a  probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.  If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable  attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

(e) As used in this section, “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” includes:

(1) 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.

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.  The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section.  The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.  The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”
(i) On or before January 1, 1998, the Judicial Council shall report to the Legislature on the frequency and outcome of special motions made pursuant to this section, and on any other matters pertinent to the purposes of this section.

(j) An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(k) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or fax, a copy of the endorsed-filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees.

(2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

Community watchdogs, activists and bloggers. Do not allow yourselves to be intimated or threatened for questioning and speaking out against any elected officials actions. While our Second and Fifth Amendments are under attack our First Amendment Rights still prevail.