California SLAPP Law

I came across the following article by Darren Chaker who, according to the article, spent many years litigating a free speech case, apparently as the plaintiff.  His article provides a nice summary of SLAPP law as it applies to posting critical comments on-line, and the  importance of consulting with counsel before filing any free speech suit.  [Reprinted here with permission.]

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While legitimate criticism is protected, postings which constitute defamation are not. Ibid.; see also Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly held that “defamation…[is] ‘not within the area of constitutionally protected speech.'” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker, supra, 428 F.3d 1215, 1223 (9th Cir. 2005)).

Prior to filing a lawsuit for comments posted online, it is important to know what a “SLAPP” lawsuit is and if what you believe is defamation is that, or merely protected speech. The acronym “SLAPP” stands for Strategic Lawsuits Against Public Participation, see California Code of Civil Procedure § 425.16. I cite California law, however most states have similar SLAPP laws as California. The crux of SLAPP law allows someone who is sued for doing activity which is protected by the federal or state constitution. If the Defendant’s activity sued for is protected activity, then an anti-SLAPP motion could be filed. An anti-SLAPP motion usually seeks dismissal of “lawsuits that ‘masquerade as ordinary lawsuit’ but are brought to deter common citizens from exercising their political or legal rights or to punish them from doing so.” Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003).

Keep a couple of things in mind before you go to court:

• Once a Plaintiff files a lawsuit, and Defendant files an anti-SLAPP motion, the complaint is frozen. Thus, Plaintiff cannot amend the lawsuit to avoid the court ruling on the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 CA4th 1068, 1073) Amendments could frustrate the Legislature’s objective of providing a “quick and inexpensive method of unmasking and dismissing such suits.” See, Simmons at p. 400)

• Plaintiff has the option to dismiss the lawsuit. Nonetheless, Code of Civil Procedure § 425.16 gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to Defendant. (Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at 879, 100 CR3d at 777-778)

• A typical California attorney with 10+ years of experience bills from $325-500/hr. If a person files a lawsuit based on defamation, or other protected right, and loses, the court must award attorney fees to “adequately compensate the defendant for the expense of responding to a baseless lawsuit,” Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). As such, if you lose your case, attorney fees of $12,000-25,000 are typical.

• If you are self represented, this doesn’t buy you any credit with the court for suing someone for doing what the law allowed them to do (e.g. free speech). Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985)  Thus, you can’t say in opposition, “Opps I didn’t know”.

In short, I strongly recommend do NOT file a lawsuit unless an attorney, who is competent in First Amendment law, agrees to file it for you.

I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case continues to be a leading case on viewpoint discrimination. My case is active, living and breathing-forever helping people who once felt oppressed.