Under Code of Civil Procedure §425.16, et. seq., when a court in Los Angeles or San Diego analyzes an anti-SLAPP motion to strike part or all of a complaint for libel or slander, there are two distinct inquires, often called “prongs”. This article focuses on the elements of the defendant’s burden in first of these and emphasizes what a defendant must show the court in this phase one. The core questions are whether the defendant’s conduct complained about arises from, is in furtherance of, and was done in connection with the constitutionally protected rights of petition or free speech.

The phase one aspects of anti-SLAPP analysis have proven elusive to some practitioners and more than a few judges.

In the initial phase of the analytical process, the defendant must also show his actions (1) arise from constitutionally protected activity, and (2) are connected to a “public issue” or, (as part of the amendment of the anti-SLAPP law in 1997) connected to a matter of “public interest.” In prong one the legal burden is entirely on the defendant.

On this threshold issue of showing the contested causes of action arise from his legally protected activity, the defendant must make the necessary showings, but in the first phase of anti-SLAPP analysis of a defamation complaint the defendant need not prove the plaintiff violated his rights. He need show only that the plaintiff’s lawsuit arises from his (defendant’s) constitutionally guarded First Amendment rights. The defendant’s underlying activities – such as objecting to a neighbor’s false and profane complaints about him to the city council, or loudly calling the plaintiff a complete idiot, ignorant, a loser, and a piece of dog feces, in a crowded restaurant – are the central focus.

In the initial part of the anti-SLAPP legal analysis, the court will not evaluate the validity of the plaintiff’s allegations because the defensibility of those claims is irrelevant. The merits are unimportant. Anti-SLAPP analysis in prong one solely determines whether the defendant can avail himself of the code’s procedural protections.

And even if the defendant’s actions are allegedly illegal, he can still meet his burden to establish he was engaging in his right of free speech or petition in connection with a public issue or matter of public interest.

In Part 2 of this blog, I will discuss additional important aspects of prong one of judicial anti-SLAPP review. Among those are the meaning of the defendant’s conduct “arising from,” “in furtherance of,” and “in connection with” his constitutionally protected activity.