Why, Yes, I AM Into SLAPPing

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54 Responses

  1. Rick H. says:

    Thanks for providing some legal context. One thing about these statutes that could be confusing to us laymen is a tendency for lawyers to use both "SLAPP" or "anti-SLAPP" to refer to them. Popehat isn't alone; I've seen it on other blawgs, too, and it took a while to realize you all were talking about the same thing.

  2. Dan Irving says:

    I clicked the 'Contact your representative' link on the Public Participation Project and put this in the message field:

    "With the advent of the Brett Kimberlin fiasco currently making it's way around the internet (a la the Streisand Effect), it is readily apparent that North Carolina needs anti-SLAPP legislation. It is one of 21 states that has not taken steps to protect it's citizens First Amendment rights. Free Speech is a non-partisan issue. SLAPP can be used to chill the oppositions voice no matter the ideology. Anti-SLAPP legislation, hopefully modeled after California and Texas – two states who's anti-SLAPP legislation are the most robust, should be introduced immediately."

    Not sure how it works but hope it helps. It's always been my view, especially after reading Phillip K. Howards "The Death of Common Sense" in the 90's, that this country (fed and state) are in need of serious tort reform. (Specifically because of cases like those involving Brett Kimberlin and not, as most tort reform advocates on my side argue, because of Liebeck v. McDonald's Restaurants)

  3. Damon says:

    I've edited your 6/09 Posting comments:

    What is best in life?


    Truly thou ist an uber pimp! I want to be a lawyer. :)

  4. Me says:

    The California law is good, but it doesn't always work. I got hit with a SLAPP suit. The judge allowed nearly a year of discovery which cost $250k for my attorney. Plaintiffs still couldn't prove any portion of their case, and it was dismissed. Plaintiffs are appealing, and the court refuses to award my fees and make them pay up. I won over a year ago. And here we sit.

  5. silvermine says:

    If it helps, this post caused me to search for MD's anti-SLAPP laws and found a post from 3 years ago where the only comments were that there are often no comments. Yay archives!

  6. Christina says:

    Thanks for so much detail on this passion of yours! I stand with Rick. H – SLAPP/anti-SLAPP has been a confusing semantic detail for me. An appointed county official (we are in an unincorporated CA district) threatened me with suit in response to a letter I wrote to elected county officials regarding the conduct of the appointed advisory panel she chaired (and her conduct personally as chair). It seems her claim that one can not criticize political appointees with the same vigor as elected officials was completely and totally bogus (as I assumed), since the panel and appointments are 'authorized by law'. Of course, I was not addressing an open proceeding nor commenting on a specific issue before the panel, but certainly section (4) of your quoted statute applies. She was/is power-hungry and completely willing to lie, so I placed little credence in her statement of legal fact.

    It is unfortunate that so many are willing to lie and deceive – the end justifies the means – that the evidentiary provisions of the SLAPP statute seem incredibly important. Are they standard or is that also something that varies across states?

  7. BobN says:

    Maybe you should add what exactly SLAPP stands for. Nothing worse than undefined acronyms

  8. Ken says:

    Addressed in the opening now.

  9. Ken says:

    Christina: if you ever get a threat like that again and don't call me for help, I shall really be quite put out.

  10. SPQR says:

    SLAPP – Strategic Lawsuits Against Public Participation.

  11. John Kindley says:

    On the other hand, I've personally seen California's anti-SLAPP statute abused to punish the bringing of a highly meritorious but politically-charged lawsuit brought in the public interest. Bringing suit can itself be a protected form of expression, and the anti-SLAPP statute can be and has been used to suppress and deter it.

  12. Christina says:

    Ken, I accept the anti-SLAPP slap :-) I could sit in on another public meeting and write another letter if you really want the pleasure of anti-SLAPPing her, or would that be enabling you too much? ;-)

  13. Ken says:

    It's pointless to order your existence to please me.

    But if your own inclinations lead you into trouble again, please call.

  14. SPQR says:

    Kindley, do you have any examples?

  15. Grandy says:

    Georgia's seems quite narrow, unfortunately, only protecting "statements made before a governing body" and that sort of thing.

  16. John Kindley says:

    QR, not sure why you chose to address me by my last name when my first is readily available. Yes, I do have any example, though I'm sure Ken does not want to see this thread derailed by a discussion of the merits of that particular case. I wrote a post about it here: http://www.peoplevstate.com/?p=1375
    More extensive discussion of the underlying merits can be found in a law review comment linked from the same site.

  17. Ken says:

    I alluded to criticisms about the scope of the California anti-SLAPP statute in my post. I agree that I'd prefer this post not become a venue for discussion of one particular case. But John's linked posts includes a link to the court decision at issue. That's a good place to start.

  18. perlhaqr says:

    It certainly seems like this is a pretty important law to put on the books, especially in this day and age where (as Kimberlin demonstrated) people who are inclined to BIFD can ask the Google Ubermind to notify them if anyone, anywhere, says anything about them online.

    Though it seems like you could still end up kinda screwed on lawyer's fees if you get SLAPPed by someone like Kimberlin, who doesn't pay judgements against him anyways. But I suppose that's not significantly worse than a situation where you owe your lawyer for defending you.

  19. Smegily says:

    What is an anti-SLAPP?

  20. Ken says:

    Did you read the post addressing that?

  21. Ryan Metheny says:

    Thanks Ken for a great summary of anti-SLAPP law. I especially appreciated your explanation of the terminology, as others have commented here. Even a lot of lawyers will refer to a "SLAPP motion" or "getting hit with a SLAPP" when they mean "getting hit by an anti-SLAPP motion."

    John Kindley — Did you argue in that case that the public interest exemption to the CA anti-SLAPP statute applied? If your case was really brought in the public interest, you should have been able to defeat an anti-SLAPP motion pretty easily. (C.C.P. section 425.17(b).)

  22. SPQR says:

    John Kindley, my use of your last name was not intended to offend.

  23. John Kindley says:

    SPQR: Cool. Ryan: That is extremely interesting. The suit was brought a number of years ago, so honestly I don't remember, but I can't imagine we would have missed that or failed to raise it if it was available. The plaintiffs asked for no damages, because they themselves suffered no damages. (Your state is very good about that, conferring standing upon basically anyone to sue on behalf of the general public for injunctive relief to stop false advertising. North Dakota was one of the extremely rare states to provide likewise, until another case I brought fixed that.) How long has that public interest exemption been part of the anti-SLAPP statute? I note this language in 425.17(a): "The Legislature finds and declares that there has been
    a disturbing abuse of Section 425.16, the California Anti-SLAPP Law,
    which has undermined the exercise of the constitutional rights of
    freedom of speech and petition for the redress of grievances,
    contrary to the purpose and intent of Section 425.16."

  24. Jay says:

    "The evidence must not only show what I did, but be sufficient to defeat any First Amendment or statutory privileges I have."

    I'm sorry to be the dumb one, but what are statutory privileges?

  25. Ken says:


    Not dumb at all.

    Statutory privileges are state-law privileges given certain speech.

    For instance, California has a strong litigation privilege. That means, as an example, that if you sue me and call me a convicted criminal in the complaint, I can't sue you for defamation based on that statement. (There's lots of complex nuances: for instance, the statement in the complaint is privileged, but if you hold a press conference and repeat the statement, that's not privileged.)

  26. Personanongrata says:

    Have anti-SLAPP statutes been used in recent instances where agents of the state have prevented people peaceably to assemble, and to petition the Government for a redress of grievances(eg UC, Berkeley pepper spray incident)?

    If not, why not?

  27. Ken says:

    No. Because the anti-SLAPP statute, as described above, creates a procedural motion that can be filed in response to a civil complaint. It does not create a new right of action to be employed against censorious or improper behavior in the abstract.

  28. Personanongrata says:

    What a shame.

  29. Scott Jacobs says:

    The "why not" in that specific case would largely be because the cops were surrounded and incited. Note in the video (the full one, not the one that Occupy groups propagate) the two wearing goggles and rain-coats. They are professional provocateurs. They used the students -the stupid, stupid students – to get the cops to defend themselves.

    Good to see their efforts paid off in your case.

  30. Ken says:

    What a shame.

    I guess. In the sense that it's a shame that my gold rocket pony is not a diamond-studded gold rocket pony.

  31. Scott Jacobs says:

    Is your wife aware that is your name for it?

  32. John Kindley says:

    Ryan, I see from your organization's website that the public interest exemption didn't become effective until January 1, 2004. Too late for us. Maybe our case was one of the "abuses" the Legislature found and declared.

  33. Jay says:

    Thank you, Ken.

  34. Xenocles says:

    Is representing the plaintiff in a SLAPP considered malpractice or to be otherwise sanctionable?

  35. Ken says:

    Xenocles, I seem to recall a recent California case that says that the fee order cannot be imposed against the losing lawyer, only against the client. I don't know the law in other states. Advising a client to file a lawsuit that leads to a successful anti-SLAPP motion might, indeed, be malpractice.

  36. SPQR says:

    Interesting, Ken, I was under the impression that it was possible in California to make the order joint between attorney and client – but I confess its been quite a few years since I paid attention to California SLAPP statute to that level of detail.

  37. Xenocles says:

    Thanks, Ken.

  38. freedomfan says:

    Ken, great post. I am among those who thought he had a general idea what anti-SLAPP statutes were and that I would someday look up a concise and worded-for-the-layman explanation to be sure. Thanks for providing just that.

    BTW, as a Californian, this is one of those instances where I am heartened by my state's law. But, as a non-lawyer I am not sure how such issues are affected when the butt-hurt party resides out-of-state. In other words, assume that he lives in New Jersey (no anti-SLAPP statute) and he decides to sue me for an opinion I've written on my blog. Does the California anti-SLAPP statute apply or can he work things so that only NJ law applies? Is this one of those instances when the federal nuances you mention become important?

  39. Ken says:

    freedomfan: here's the short answer. If he sues you in California, it applies (dull and lengthy discussion of choice-of-law clauses in contracts in odd hypothetical situations omitted). If he sues you in a state without an anti-SLAPP statute, you're out of luck. (ditto omitted).

    That's the reason behind advocacy for a federal anti-SLAPP statute that would permit removal to federal court — which is part of the subject of the upcoming Reason issue, and my blurb in it.

  40. freedomfan says:

    Sounds like he would have a pretty good incentive to try to sue me in his home state. Since the internet may make it easy to claim that's where the damage was done, that would be trouble… I'm not usually a fan of the fed writing laws about things the states should deal with on their own, but it may be necessary here. I guess I will be looking forward to that Reason piece.

  41. Joe says:

    Yee haw – so glad I live in Texas. I havea similar question as to what SPQR stated on holding the counterparty legal representation jointly responsible for damages. It states reasonable attorney's fees but that's it.

    On the other hand we have an interesting one to watch here http://slappedintexas.com/ on Wentworth v Jones (aackk – more politicians). Although, the one I find more interesting is the recent Texas anti-SLAPP against American Heritage Capital, LP who had sued Dinah Gonzalez, and later Alan Gonzalez, for defamation after Mr. Gonzalez posted comments online about a negative experience he had with the online mortgage lender.

    Dinah and Ala Gonzalez won. American Heritage Capital deserves to go into the que for censorious douchebaggery.

    I'm not finding language specifically stating one way or the other in the Texas

    I'll poke around in the one for Texas because I can't remember

  42. Joe says:

    Aacckk – either my keyboard has run amuck or I am way past making sense due to lack of sleep which happens to me frequently after international travel. Hopefully my prior post will not cause too much confusion.

  43. Bret says:

    The Washington State Anti-SLAPP statute seems to be crafted after the California statute. Link here:


  44. Mike says:

    Sorry to come back to this post so late – very interesting.

    Does California have "security for costs" provisions?

    In some jurisdictions (including mine) where the plaintiff is likely to be liable for costs and unlikely to be able to pay, a judge may order the plaintiff to post security for those costs before any other steps can be taken. Its a good way to stop the plaintiff in their tracks and avoid an empty judgment for costs (especially if counsel isn't jointly liable).

  45. Ishouldbestudyingforthebar says:

    Would this potential lawsuit fall under a SLAPP statute? http://theoatmeal.com.nyud.net/blog/funnyjunk_letter

  46. John David Galt says:

    Can the anti-SLAPP law be used against actions brought under laws that "overprotect" favored industries from criticism? (I'm thinking of the Texas law under which Oprah was sued for saying unkind things about the beef industry.)

  47. David Brant says:

    Ken, I've just gotta say … if you every give up lawyering, you've got a shot at a second career of comedy blogging. LAFFO: "…abusing an eight-year-old with a live (though world-weary) squirrel…"

    Thanks for your entertaining, and enlightening, articles. I look forward to them every week.

  48. David Brant says:

    *ever* .. not "every"

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