Our (future) client — we’ll call him George because that’s his name — was retired and looking for something to do. He eventually settled on politics. Not as a politician, but as a gadfly (his word, not ours). He became a fixture at local city council meetings, and would routinely take to the mic to express what a terrible job he thought the elected officials were doing.
Eventually other people started to listen to George, and became convinced that the council members were incompetent, if not corrupt. To that end, a recall was organized and put to a vote, and three of the five council members were removed. At the first city Council meeting following the recall, when it came time for public remarks, George stepped to the lectern (it’s a lectern, not a podium, contrary to popular belief), and made the following statement:
“I hope you three new members won’t become as corrupt as the two that didn’t get recalled,” or words to that effect.
One of the two aforesaid councilmembers, we’ll call him “Mr. Thin-Skinned,” did not take kindly to that remark. In fact, Mr. Thin-Skinned turned around and sued George for defamation. George brought me the complaint, and the minute I looked at it, I knew Mr. Thin-Skinned was in big trouble.
The Anti-SLAPP Statute
You see, back in the 1990s, the California legislature decided too many people were using defamation lawsuits as a means to silence criticism. Say there was a really bad contractor, with the propensity to build homes with insufficient supporting walls. Along comes a homeowner who takes exception to the fact that all the walls are cracking in his new home, and reports the contractor to the Contractors Licensing Board (CLB). What is a really bad contractor to do? This is his third complaint, and he knows he is going to lose his license if he can’t make this complaint go away.
Prior to 1990, the contractor might have sued for defamation, claiming that the criticism of his work to the CLB was false and defamatory. Whether the contractor would succeed in the litigation was not particularly important. That wasn’t his goal. Rather, his goal was to force the homeowner to spend tens of thousands of dollars fighting against the defamation action. There was a good chance that the homeowner would eventually cry uncle, and agree to drop his complaint with the CLB, in exchange for the contractor agreeing to dismiss is defamation action. What an outrage!
This strategy was referred to as a Strategic Lawsuit Against Public Participation, or “SLAPP.” California responded by passing what is called an anti-SLAPP statute. It was the first state to do so, and thirty other states have since passed similar laws.
For public policy reasons, there are various types of speech that are protected against defamation actions. For example imagine that a criminal could sue you for defamation for reporting their activity to the police. A robber holds you up at knife point, you report the crime to the police, the robber is arrested, and to pressure you into dropping charges, he sues you for defamation, claiming that you falsely accused him of a criminal act. Again, that would be a very effective way to get victims to drop criminal charges. It is for this reason that a statement to the police cannot be the basis for a defamation action. That doesn’t mean anyone can make a false report to the police with impunity, because making a false report is a crime. It just means that it can’t be the basis for a defamation action. You can certainly see why.
Public policy also dictates that we can’t have politicians suing their constituents for daring to criticize them. George’s use of the term “corrupt” was a bit hyperbolic, but certainly in the political arena, we must allow vigorous debate, and that is why it is given protected status.
Back to Mr. Thin-Skinned.
Right there in the anti-SLAPP statute, in black and white, it states that one form of protected speech is “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” It further protects “any written or oral statement or writing made a place open to the public or a public forum.” George was addressing a city council, which is a legislative proceeding.
So I responded to the complaint from Mr. Thin-Skinned with what is called a Special Motion to Strike under the anti-SLAPP statute. I had him dead to rights, but his attorney went down swinging. Or more accurately, he went down flailing.
One case, decided a long time ago, under a very specific set of facts, found that the anti-SLAPP statute does not apply to protect illegal speech. In that case, the speech in question was determined to be a form of extortion. The court didn’t feel that it was appropriate to allow the anti-SLAPP statute to provide cover to criminal conduct. Since that case was decided, every time I bring an anti-SLAPP motion, opposing counsel desperately tries to find some basis to argue that the speech in question was illegal. In this case, the attorney gets five stars for creativity.
He looked everywhere for some theory that would make George’s comments at the city Council meeting illegal. The only thing he could find was a memorandum written by some city employee, stating how city council meetings should be handled. In that memorandum, it was suggested that members of the public should behave in a civil manner when addressing the council members. The attorney argued that the comment made by George was therefore illegal, because it was not civil.
When you’re done chuckling, we will proceed.
The judge didn’t buy it either, and my special motion to strike was granted. There is one very key feature of the anti-SLAPP statute we haven’t discussed. Even though an anti-SLAPP motion disposes of the action rather quickly, bogus defamation lawsuits would still have a chilling effect on criticism, if the defendant had to pay attorneys fees to extricate themselves from the lawsuit. Therefore, the anti-SLAPP statute provides that defendants must be awarded their attorney fees from the other side.
Anti-SLAPP motions are not inexpensive, because each is unique and must be researched, and supported by evidence and declarations. Following the anti-SLAPP motion, I brought a motion for attorney fees, and the court awarded all that we had requested. The court agreed to allow Mr. Thin-Skinned to pay off the attorney fees in small payments over two years. George was quite content with this arrangement, because each time Mr. Thin-Skinned had to write a check to George, it reminded him that free speech is a cherished and protected right in this Country. We envisioned that the process was something like this Steve Martin movie: