Social Media and Anti-SLAPP Motion to Strike: CONTEXT DOES MATTER

Social media is the wild west of free speech. Just about anything goes; there seems to be no rules and no procedures for enforcing legitimate rights violated by unprotected speech used to cause damage. In the early 1990s, just as the internet was first coming into the public consciousness, the California legislature enacted a statute to establish certain protections for free speech by providing a summary procedure to dismiss lawsuits filed for the purpose of chilling First Amendment rights. Although the provision addresses the issue of malicious lawsuits brought to stifle rights of free speech and petition, its effect, to an extent, has been to inhibit meaningful regulation of the internet. Recently the California Supreme Court issued a number of decisions that may give important direction to how these opposing interests are reconciled, one of which is discussed here.

The Internet and the Anti-SLAPP Statute

The internet was developed with a libertarian attitude of “live and let live” – that people will use their better judgment to self-regulate their interactions, and that informal policing would keep things in check. That philosophy may have worked when the internet was still relatively small and the participants generally knew one another. But with the advent of software making the internet easily accessible to the general public, [1] proverbially yelling “fire” in crowded theater has become commonplace.

In September 1992, California enacted Code of Civil Procedure §425.16 (the “Anti-SLAPP statute.”) The statute was the first of its kind and was intended to address predatory lawsuits filed by well-funded individuals and entities to prevent their targeted defendants from and/or to punish them for exercising their First Amendment rights of speech and petition. The paradigm example given at the time involved a rich real estate developer suing neighbors who protest, write letters, and distribute flyers in opposition to its proposed project. [2] These Strategic Lawsuits Against Public Participation (“SLAPP suits”) often state causes of action for defamation, nuisance, intentional infliction of emotional distress and/or economic torts (e.g. interference with prospective economic advantage) and request damages that would be economically disastrous to the defendants. [3]

The statute authorizes a special motion to strike lawsuits and/or asserted claims at the beginning of the case if they arise “from any act of [the defendant] in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” [4] The statute states that an act in furtherance of free speech includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” [5]

The Special Motion to Strike

The motion involves a two-step process where the moving party must show that the allegations arise from a protected activity in which the defendant was engaged. If the defendant carries the burden, the plaintiff must establish that the claims have “minimal merit.” [6] If the plaintiff fails to make the necessary showing of merit, the court dismisses the claims[7]. The motion to strike is a summary adjudication done, almost always, without benefit of discovery[8].

This procedure seemingly would be perfect to weed out SLAPP suits conduct on the internet, but courts have struggled to develop clear guidelines for determining the types of claims that are subject to a motion to strike. In differentiating an issue of public interest and a private dispute, the courts have noted that “[a]gile thinkers always can create some kind of link between a statement and an issue of public concern.

All you need is a fondness for abstraction and a knowledge of popular culture.”[9] In analyzing the first prong of the review, courts have come to conflicting results about the meaning of the phrase “in connection with a public issue or an issue of public interest.” As a result, defendants have been emboldened to bring these motions with “creative logical connections” even in marginal cases. The prospect of recovering attorney’s fees may also contribute to the popularity of this procedural device.[10]

FilmOn.com Inc. v. DoubleVerify

Recently, the California Supreme Court issued a series of anti-SLAPP decisions attempting to clarify the first prong of the analysis, among them FilmOn.com Inc. v. DoubleVerify Inc.[11] The court sought to provide direction on how the context of a statement, including the identity of the speaker, the audience, and the purpose of the speech informs the analysis on whether a statement should be protected as concerning a public interest.[12] It held that even if a topic is, broadly, one of public interest, where the circumstances indicate that there was no intent to engage in a public discussion, or the speech is only remotely connected to the asserted public interest, it is not subject to a motion to strike.[13]

Social Media Cases: Context Does Matter

This holding has particular relevance to social media, where the purpose of speech is often not about issues of public interest but more about settling scores, revenge and trying to hurt people who may be perceived to have harmed the speaker.[14] In the Summit Bank v, Rogers case, the court found the employee’s comments related to a public issue and dismissed the action without any inquiry into the context of the statements. The context of the defendant’s statements in that case was clearly to harm the bank rather than to inform the public of a dangerous institution. After FilmOn.com, there is a strong argument this case may have been decided differently. Indeed, following FilmOn.com, the Court of Appeal held in the Woodhill Ventures case that statements by an “internet celebrity” who complained on Twitter and his podcast about a bakery that made his seven year old’s birthday cake with candy decorations that looked too much like real “pill” medications were not protected by the anti-SLAPP statute.[15] The court analyzed the context of the statements and determined the purpose of the speech was not to raise awareness about “candy confusion” but to “whip up a crowd for vengeful retribution.”[16]

The anti-SLAPP statute has a laudable goal of protecting free speech from malicious litigants intent on shutting it down. Social media, however, can be rough and tumble and speech routinely veers from polite discourse; increasingly, people and businesses are profoundly affected by truly defamatory language and malicious conduct. Where a defendant’s words or deeds have malicious intent, plaintiffs should have full access to discovery and a jury trial instead of summary dismissal under the anti-SLAPP statute. The court’s recent decisions are attempting to strike a more proper balance. The holdings may provide much needed clarity for litigants, but they may also contribute to the civility of social media by creating meaningful disincentives for harmful behavior on the web.

[1]Mosaic, the internet browser generally thought of as the catalyst for the Internet boom, was developed in fall of 1992 right as the anti-SLAPP statute was enacted. See https://en.wikipedia.org/wiki/Mosaic_(web_browser).
[2]FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal. 5th 133, 143.
[3]Ibid
[4]Code Civ. Proc. § 425.16(b)(1)
[5]Code Civ. Proc. § 425.16(e)(4)
[6]Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, 884
[7]Ibid.
[8]Code Civ. Proc. § 425.16 (g)
[9]Woodhill Ventures, LLC v. Yang (2021) 68 Cal. App. 5th 624, 632; review denied Dec. 15, 2021
[10]Code Civ. Proc. § 425.16 (c) (1)
[11]FilmOn.com v. DoubleVerify Inc., supra, 7 Cal. 5th 133
[12]Id. at p. 140
[13]Ibid
[14]See e.g., Summit Bank v. Rogers (2012) 206 Cal.App.4th, 669 (a disgruntled ex-employee posted disparaging remarks about his employer on a “Rants and Raves” bulletin board).
[15]Woodhill Ventures, LLC v. Yang, supra, 68 Cal. App. 5th 624
[16]Id. at p. 632-633