Anti-SLAPP’s Unique “Public Issue” Application to Petition Rights

One of the most common misunderstandings of California’s anti-SLAPP law is how to apply the “public issue” element to the broader “right of petition or free speech” test. Here it is in full:

A cause of action against any person arising from any act of that person in furtherance of that person’s right of petition or free speech under the United States Constitution or the 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.

Code of Civil Procedure § 425.16(b)(1), emphasis added.

Analyzing this provision in a vacuum could lead us to conclude that anti-SLAPP applies only to speech and petition activities that are related to issues of public interest. This conclusion, however, is incorrect.

If we scroll further down through the statute, we will see that Section 425.16(e) provides a far broader interpretation of this language to include:

(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 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, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or constitutional right of free speech in connection with a public issue or an issue of public interest.

Pay special attention to the distinctions between (1)-(2) and (3). Part (3) encompasses speech specifically made “in connection with an issue of public interest.” We understand that this requires some level of public interestit cannot involve matters of purely private interest. Parts (1)-(2), on the other hand, uniquely address the right to petition and have no such limitations. The first two protect any statements made before or in connection with any sort of government proceeding.

Let’s think about how parts (1)-(2) envelopes activity within the “public issue” sphere that we may view as private. Police reports are a prime example. We may view reporting criminal activity as private in nature, especially if the subject of the report believes the report was fraudulent. The subject of a false report may decide to file a malicious prosecution action against the filing party. Notwithstanding the obstacles presented by the litigation privilege codified in Civil Code section 47(b), the enlistment of law enforcement to investigate criminal activity is a “public issue” under Section 425.16(e). Filing lawsuits and initiating regulatory proceedings yield similar conclusions.

In summary, filing a lawsuit to seek damages resulting from being reported to a government agency is opening a major can of worms. It is likely vulnerable to an anti-SLAPP motion, and the result could be early dismissal and a costly attorney fee award. I specialize in anti-SLAPP motions and am available to consult with plaintiffs’ counsel who have inadvertently stepped into an anti-SLAPP situation.

Categories: anti-SLAPP.