In Part 1 of this blog, I noted that in Phase One of the court’s examination of a special motion to strike (an anti-SLAPP motion), part or all of a plaintiff’s complaint, the defendant must show (but not prove) the plaintiff’s allegations “arise from,” are “in furtherance of,” and “in connection with” defendant’s constitutionally protected rights of petition or free speech on a public issue or a matter of public interest. In this segment I will discuss what these critical analytical terms mean.
- The meaning of the phrase “arising from an act in furtherance of” petitioning or free speech.
The defendant can show his alleged actions themselves arise from his activities in furtherance of his rights by displaying they fall into one or more of four categories set forth in the black-letter law.
- Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
- 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.
- 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.
- Any other conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest.
- The meaning of actions “in furtherance of” free speech or petitioning has been determined by California’s appellate courts to mean “…helping to advance [or] assisting.” For example, as noted in one case, “Reporting the news usually requires the assistance of newsgathering which…can be construed as undertaken in furtherance of the news media’s right to free speech.”
- The meaning of “in connection with” the rights of petition and free speech.
The California anti-SLAPP law concerns more than statements and conduct themselves expressions of petition and speech rights on public issues or matters of public interest. The statute also shields statements “in connection with” such matters.
In a recent libel case, and appellate court ruled the anti-SLAPP law protected two inappropriate letters sent by an attorney in a home owners’ association dispute. The contest related to the plaintiff’s building plans. Despite finding the letters were not “published” as required to establish libel, the court held they were part of the ongoing public debate, i.e., sent in connection with a matter of public interest.
The issues involving actions arising from, in furtherance of, and in connection with the rights of free speech and petition form the core of a California court’s review in Phase One of anti-SLAPP analysis in defamation cases.