Dear Counselor: Don’t get SLAPPed around

Question: A developer has proposed an atrocious plan for a vacant piece of property not far from where I live. Although I have never really protested much of anything in my life, I really feel like I should speak out about this.  A friend, however, warned me that my speaking out could ensnare me in a slander lawsuit by the developer that could cost me a lot of money.  Should I be concerned?

Answer: Development battles are heating up in the City of Davis, and you have a right to be heard. But with the stakes so high, some parties might consider silencing the opposition with a slander lawsuit. As a lone citizen voicing your opinion, a slander lawsuit with a big claim for damages that jeopardizes your life savings may make you think twice about speaking out.  Fortunately, the law provides a procedural remedy to prevent lawsuits designed to chill the exercise of free speech.

The type of lawsuit you are concerned about facing is a “SLAPP” lawsuit.  SLAPP stands for “strategic lawsuit against public participation.”  A SLAPP suit targets a person who exercises his or her free speech in hopes of shutting them up.  For example, you might attend a planning commission meeting and claim that Big Development Company unlawfully deprives its workers of a living wage and guts our community of neighborhood stores.  The next day you answer your front door and are served with a lawsuit from Big Development Company claiming that it has been gravely damaged by your allegedly slanderous statements.  Gulp.

Once you pull yourself off the floor and splash some cold water on your face, visit a good lawyer. California’s “anti-SLAPP” statute provides a procedure in civil court which allows you to strike the lawsuit. As the defendant, you must first show that the lawsuit is targeting “protected activity” – such as your First Amendment right to be heard at the planning commission.  Then the burden of proof shifts to Big Development Company to show that it is more likely than not to prevail on its claim.  It has to demonstrate with hard facts that your comments were knowingly false and caused harm to continue with its case.  If the court finds that the plaintiff is just full of hot air, the anti-SLAPP motion strikes the claim.

As an incentive for lawyers to exercise this remedy when appropriate, the law allows a prevailing defendant to collect his attorney’s fees and costs.  So be sure to visit an attorney to make sure that you are properly asserting the anti-SLAPP remedy.

The policy behind the statute is straightforward.  It prevents a chilling effect on the exercise of free speech.  The anti-SLAPP remedy applies in other contexts beyond just big company versus little individual.  How about a business that voices “safety concerns” over a competitor’s product, which leads the competitor to suffer a huge loss?  Would a subsequent lawsuit by the damaged company be subject to anti-SLAPP and possibly thrown out of court?  Maybe.  What about if Ted Cruz decides to sue the National Enquirer for saying he has five mistresses and that his father passed out leaflets with Lee Harvey Oswald? Can the National Enquirer claim its “reporting” as protected activity and anti-SLAPP Cruz out of court? Possibly.  That’s why he might be well advised to sue in England and avoid California law altogether.

Even though it’s in the name, the anti-SLAPP remedy deals with lawsuits against “public” participation.  So the speech must address a public issue.  You can’t go to your ex-spouse’s job, call him a cheating embezzler, and then expect to prevail on an anti-SLAPP motion when he sues you for losing his job and slander.  Publicly posting these comments on Facebook doesn’t make it a public issue.  So you may want to think before you carelessly speak.

Overall, you should go out and make your voice heard.  Don’t let anyone from Big Development Company or elsewhere “SLAPP” you around.  But if they do, you don’t have to turn the other cheek, you can turn to the California Code of Civil Procedure to give them the “anti-SLAPP.”


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm specializing in family law, estate planning and trust litigation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at www.kopperlaw.com

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By | 2017-08-06T16:28:11+00:00 May 1st, 2016|Dear Counselor|0 Comments

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