Part 1 of 2:
In a notable and well-written opinion by Justice Cuéllar[1] for the court, the California Supreme Court recently reversed a Second District Court of Appeals decision holding the context of speech challenged by an anti-SLAPP motion is irrelevant to the motion’s analysis under California’s anti-SLAPP law, Code Civ. Proc., § 425.16[2].
Plaintiff FilmOn is a for-profit business. It distributes web-based entertainment. Defendant DoubleVerify offers online tracking and “brand safety” services to Internet providers. DoubleVerify made certain confidential paid reports about alleged adult content in FilmOn’s entertainment programming. The plaintiff objected that its business had been defamed and moved to strike the complaint.
The superior and appellate courts held the context of DoubleVerify’s speech, i.e., its corporate, fee-based reports, irrelevant to analysis of a special motion to strike. The lower courts ruled such issues as the identity of the speaker, the audience sought, the confidentiality status of the speech, and the use to which the defendant’s clients put its reports, may not enter into the court’s analysis. They held the “catch-all” provision in § 425.16, subd. (b) of the anti-SLAPP law[3] may not be evaluated using these contextual factors. (The Supreme Court prefaced its review with the point that, as this writer and others have observed, the terms “conduct in furtherance of” the constitutional rights of petition and speech, made “in connection with a matter of public interest or a public issue,” lack definition in the anti-SLAPP law.[4])
The Supreme Court disagreed and reversed. In ruling the commercial nature of a defendant’s speech is relevant but not determinative of whether speech deserves anti-SLAPP protection under the catch-all language, the justices found it necessary to “clarify how the [broader] context of a statement–including the identity of the speaker, the audience, and the purpose of the speech–informs the analysis.
The high court held these contextual aspects of a defendant’s statement is similarly relevant but, again, not conclusive when examining whether such a statement was made in furtherance of free speech in connection with a public issue. The court reasoned that weighing context will allow lower courts to assess the “functional relationship” between speech on the one hand and the issue of public interest on which it touches on the other. In this undertaking, courts may be aided in deciding whether speech merits protection under § 425.16, subd. (a)–designed to “encourage continue participation in matter of public significance.”
The decision in FilmOn.com, Inc., v. DoubleVerify, Inc., contains additional examination of issues important to California defamation and anti-SLAPP law. A subsequent article here will explore some of these.
[1] FilmOn.com, Inc., v. DoubleVerify, Inc., 7 Cal.5th 133.
[2] Unless otherwise noted, all further statutory references are to the Code of Civil Procedure.
[3] This subdivision specifies the catch-all language includes acts “in furtherance of” a person’s right of petition or free speech “in connection with” a public issue or an issue of public interest.
[4] 7 Cal.5th at 139.