Just Because the Case Involves Speech, that Does not Automatically Make the Complaint a SLAPP

Man with elephant
Oy. Some judges.

As the old saying goes, to a hammer everything looks like a nail, and I have confessed here that I have a natural bias to view every complaint I see as a SLAPP. But there are many a judge who take this to ridiculous extremes, with no thought of the purpose of the anti-SLAPP statute.

Say it with me judges. “Just because the facts of a case involve speech, that does not automatically make the complaint a SLAPP.”

Today’s tale comes out of Monterey, California. The animal rights group PETA had a beef (see what I did there?) with the way a local zoo was treating its elephants. PETA didn’t like that the human trainers shared unrestricted space with the elephants. Apparently they walk along the elephants to herd them out to the show area, where they talk about the elephants to the paying public.

This presents a problem because if the elephants get unruly, the trainers have to use canes to encourage the elephants to stop acting up. It’s also not a totally safe practice. In 2018 a zoo employee was seriously injured by an elephant that did not like the “aggressive action” taken by an employee. There was a dispute between PETA and the zoo as to whether the use of canes was a violation of California law, designed to prevent cruelty to animals.

A few words about California’s Unfair Competition Law.

California’s Business and Professions Code section 17200, et seq. is intended to prevent unfair business practices. It is interpreted very broadly, and is thrown into many legal actions that one would think have nothing to do with unfair business practices, often because of the injunctive powers it contains.

One manifestation of an unfair business practice can occur when a business is doing something illegal. For example, let’s say California law requires restaurants to cook their french fries only in healthy avocado oil. But avocado oil is expensive, so a restaurant decides instead to use cheap vegetable oil, which allows them to sell their french fries cheaper than the competition.

That decision to break the law provides the restaurant with an unfair business advantage. Another restaurant could sue for injunctive relief, forcing the restaurant to use the mandated avocado oil.

Back to our story.

So PETA wanted to help the elephants, and decided that if the zoo is indeed using illegal canes to control the elephants, that would be unfair to other zoos with elephants, who control their elephants through legal means. PETA also claimed that having the trainers share unrestricted space with the elephants violated a Labor Code. PETA sued the zoo under the aforesaid statute, “to prevent their ongoing unlawful business practices in the management and care of elephants.”

But there was a problem.

As explained, the trainers walk the elephants out to the public, and talk about them. While doing the presentation, they tap the elephants to signal a requested behavior. For example, if they are talking about the elephant’s foot, they will tap the foot to signal the elephant to raise it.

So the zoo was using the canes as part of the presentation. The zoo’s attorneys seized on this fact to argue that the canes where therefore an integral part of the speech. If the trainers can’t use the cane, then they won’t be able to get the elephant to raise its leg on cue. “Oh my God, PETA is trying to keep us from speaking,” was the thrust of the zoo’s argument.

On that basis, the zoo brought an anti-SLAPP motion, claiming that PETA was trying to silence the zoo’s fee speech. Incredibly, the judge agreed. He concluded that the use of a wooden walking cane to cue the elephants by touching the elephant with the cane concurrently with voicing a command was an integral part of the Monterey Zoo’s lectures and presentations.

For the second step of the anti-SLAPP analysis, the trial court found that PETA did not show minimal merit to its claim. The court stated that PETA had not shown standing, that the use of the cane was not banned by Fish &Game Code section 2128, that no evidence was presented showing that free contact under all conditions does not provide a safe place of employment, and that PETA had failed to produce evidence of the failure of defendants to have an illness and injury prevention program.

The court granted the anti-SLAPP motion, and awarded almost $100,000 in attorney fees. Case dismissed. Take that, PETA.

PETA’s appeal.

PETA appealed the ruling on the anti-SLAPP motion, and the Court of Appeal reversed that ruling, holding that the conduct in question must bear a substantial relationship to the speech.

The fact that a defendant may engage in constitutionally protected speech does not entitle it to anti-SLAPP protection for all of its conduct. (Spencer v. Mowat (2020) 46 Cal.App.5th 1024, 1040.) To focus the inquiry, we look to whether Monterey Zoo’s use of free contact and canes “bears a sufficiently substantial relationship” to the Zoo’s “ability to speak on matters of public concern to qualify as conduct in furtherance of constitutional speech rights.” (Wilson, supra, 7 Cal.5th at p. 894.)

In Wilson, the California Supreme Court observed: “A news organization’s hiring or firing of employees-like virtually everything a news organization does-facilitates the organization’s speech to some degree. But it does not follow that everything the news organization does qualifies as protected activity under the anti-SLAPP statute. The First Amendment does not immunize news organizations from laws of general applicability ‘simply because their enforcement . . . has incidental effects on [the press’s] ability to gather and report the news.” [Citation.] We likewise do not read the anti-SLAPP statute to call for preliminary screening of every claim that might be brought against a news organization, merely because the claim might have incidental effects on the organization’s operation.” (Wilson, supra, 7 Cal.5th at pp. 893-894.)

We are not concerned here with a news organization, but as in Wilson, not all conduct undertaken by Monterey Zoo is entitled to anti-SLAPP protection merely because the Zoo may on occasion engage in constitutionally protected speech. Defendants highlight their delivery of educational speech in the context of “elephant encounters” but acknowledge that its use of free contact is not unique to those encounters. As Sammut states in his declaration, free contact is used for “management” and “training.” And as defendants’ veterinary experts explain, the Zoo’s use of free contact facilitates prompt treatment of the elephants by ensuring the elephants are under their keepers’ control and not a safety risk to the veterinarians. In free contact, the elephant handler uses the wooden cane to” ‘cue'” or guide the elephants-to move in a certain direction, assume a particular position, or present a body part for medical inspection or grooming. These uses of free contact and canes reflect the defendants’ preferred approach to elephant husbandry generally, independent of defendants’ ability to communicate basic facts about elephants or encourage an interest in conservation.

That defendants’ use of free contact also facilitates their hosting of elephant encounters does not transform the protected speech potentially delivered in these encounters, time permitting, into the basis for PETA’s complaint. (Park, supra, 2 Cal.5th at p. 1060 [“a claim may be struck only if the speech or petitioning activity itself is the wrong complained of”].) The fact that forbearance from the challenged activity might have an incidental effect on how the Zoo chooses to showcase its elephants when and if its staff read from their scripts does not demonstrate a “sufficiently substantial relationship to the organization’s ability to speak on matters of public concern to qualify as conduct in furtherance of constitutional speech rights.” (Wilson, supra, 7 Cal.5th at p. 894; see id. at pp. 893, 896.) As PETA points out, all other zoos in California provide educational presentations to the public without resort to free contact or use of canes.

PETA’s challenge to the conduct does not restrict the public’s right to receive information or defendants’ right to disseminate information, or erect barriers, content neutral or otherwise, to defendants’ communication of educational content. (Cf. id. at p. 1069 [holding that legislation implicates First Amendment rights by precluding a prospective student without a high-school diploma or GED from enrolling in a private postsecondary vocational school unless he first passed an examination unrelated to the proposed instructional program].)

Thankfully the Court of Appeal reversed the ridiculous ruling here, but I see this reasoning from attorneys far too often. Sometimes, as was the case here, they slip it past the judge.

As we speak, I am involved in a case where someone sued my client, lost, and then took to the internet to tell all the same lies she had told the court. I was retained to sue for defamation, and defense counsel responded with an anti-SLAPP motion. The basis? The attorney claimed that since the defendant’s posts on the internet were “related to” the earlier case, they fell under the litigation privilege. It doesn’t work that way. As the California Supreme Court has held, “the litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Silberg v. Anderson (1990) 50 Cal.3d 205, 212. Venting on the internet about one’s court loss does not  “achieve the objects of the litigation.”

I defeated defendant’s anti-SLAPP motion, but she appealed, making the same argument. Hopefully the Court of Appeal can be made to understand as well.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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