State Supreme Court Ruling Hailed by Speech Advocates

Staff Reporter

A recent California Supreme Court ruling has eased the way for defendants fighting suits some claim are aimed at limiting their rights to free speech.

The strategic lawsuit against public participation, or SLAPP suits as they are commonly known, has gained currency as a way to stifle opposition to development projects or halt litigation by civic and non profit groups.

A statute enabling anti-SLAPP litigation, signed by Gov. Pete Wilson in 1992, granted individuals or organizations sued for using constitutionally-protected speech the right to a special motion to seek dismissal if the suit has no probability of succeeding. At that time, the most common anti-SLAPP motions were filed against real estate developers who sued neighborhood activist groups, newspapers or other groups protesting developments.

The developers rarely won the suits, but succeeded in quieting protests by tying up their opposition's financial resources in expensive and lengthy litigation, said Dale Goldsmith, a land use attorney at Greenberg Glusker Fields Claman Machtinger & Kinsella LLP.

During the past 10 years, however, the ambiguous language of the anti-SLAPP statute has allowed it to be used in other industries, many of which have applied it in cases not inherently involving free speech.

"It had nothing to do with free speech or petitioning," said David McKenna, assistant city attorney for the Port of L.A., which recently won an anti-SLAPP case involving a construction firm. "But an anti-SLAPP motion has become a strategic way to dismiss a complaint."

But in a case that originated in Los Angeles, the Supreme Court has clarified some of the ambiguity arising from the statute enabling the SLAPP litigation, siding with anti-SLAPP petitioners.

Intent of litigation

Over the years, the courts had created a higher burden of proof on anti-SLAPP petitioners, said R.S. Radford, staff attorney at Sacramento-based Pacific Legal Foundation.

"They invented this rule that said there had to be an 'intent' requirement," Radford said. Filers of anti-SLAPP motions, in order to win, have had to prove that the business that sued them did so with the intention of chilling speech rights protected by the First Amendment.

The recent Supreme Court ruling threw out the implied "intent" requirement, stating that free speech users can still win on anti-SLAPP motions, even if the party that sued them never intended to quell their free speech.

The ruling is especially advantageous to media outlets, entertainment companies and environmental groups that frequently exercise their free speech rights.

The decision came as a result of litigation by an L.A.-based advocacy group, Consumer Cause Inc., which filed violation notices against Equilon Enterprises LLC (now Shell Oil Products US) claiming several of Equilon's L.A. gas stations were polluting groundwater with toxic chemicals.

"It's a major victory for free speech and First Amendment advocates," said Kamran Ghalchi, the attorney representing Consumer Cause. "It makes it easier for people to speak out to government entities and complain about violations or alleged violations they feel are occurring, without worrying about reprisals, whether intended or unintended, that could cost them dearly."

Phillip Maltin, senior counsel at The K & R; Law Group in L.A., who represented online newsletter ForestWeb in a recent anti-SLAPP suit, said, "Intent is a tricky issue. As a result of this ruling, you no longer have to show there was an intent to chill. You just need to show that the statute is triggered simply because a person was exercising, as in our case, their rights to free speech."

Equilon filed a lawsuit against Consumer Cause claiming the notices did not comply with state regulations. Consumer Cause responded by filing an anti-SLAPP motion, alleging Equilon's suit impeded Consumer Cause's ability to speak out on behalf of the public.

The Los Angeles County Superior Court and 2nd Appellate District Court backed Consumer Cause, and Equilon appealed to the California Supreme Court. Equilon argued, as have many victims of anti-SLAPP motions, it had no "intent" to stop Consumer Cause from using its free speech privileges by filing the suit. As a result, Equilon claimed, its lawsuit should not be subject to the anti-SLAPP statute.

The Supreme Court ruled that Equilon's intentions in the suit were irrelevant.

"While it may be, as Equilon asserts, that it had pure intentions when suing Consumer Cause, such intentions are ultimately beside the point," the ruling read. Instead, the fact that Equilon filed its suit after Consumer Cause used its free speech rights is enough reason for the suit to be the target of an anti-SLAPP motion. Further, the burden lay on Equilon, not Consumer Cause, to prove its case, the Supreme Court ruled.

Calls to Shell Oil Products were not returned.

The ruling is seen as a major victory for media organizations, which have increasingly used the anti-SLAPP statute to protect their free speech rights when publishing an article, said Roger Myers, a partner at San Francisco-based Steinhart & Falconer LLP. Myers' firm filed an amicus brief in the Equilon case on behalf of several California newspapers, including the Los Angeles Times, MediaNews Group Inc. (owner of the Los Angeles Daily News) and Freedom Communications Inc. (owner of the Orange County Register).

Strategic Suits
The 1992 California anti-SLAPP statue provides recourse to parties sued over:

- Written or oral statements before the government or courts

- Written or oral statements about an issue under consideration by the government or courts

- Written or oral statements to the public or in a public forum concerning an issue of public interest

- Any other exercise of free speech or petition rights under the U.S. and California constitutions concerning an issue of public interest.

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