By Jeremy K. Robinson, CaseyGerry

Every year, thousands of individuals and organizations are sued for exercising their constitutional right to free speech. These suits are known as “SLAPPs” — Strategic Lawsuits Against Public Participation. A California statute, dubbed the “anti-SLAPP law” generally outlaws those suits, and similar laws have been enacted in several other states. The federal government has also hinted at passing some kind of anti-SLAPP legislation, and anti-SLAPP bills have been floated in Congress for a few years now.

While frivolous lawsuits that limit free speech can be destructive, California’s anti-SLAPP laws are not known for their simplicity or clarity. Each year, our courts unleash a flood of new decisions construing the anti-SLAPP statutes, often struggling with where to draw the legal boundaries. As one court recently commented, although the purpose of the anti-SLAPP statute is to protect free speech on important subjects, “[t]he statute sweeps far beyond this paradigm, … reaching any lawsuit or claim found to arise from a party’s actions in litigation, whether or not the activities—or the litigation—have any connection to an issue of public significance or interest, or to anything that might plausibly be labeled ‘public participation.’” Hewlett-Packard Company v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1184. In other words there is a stark contrast between the reasons underlying the laws’ existence—protection of free speech—and the way the statutes were actually written; a contrast that has often confounded the courts.

This past year the California Supreme Court authored an important anti-SLAPP decision in an effort to bring some consistency to the law: City of Montebello v. Vasquez (2016) 1 Cal.5th 409. In that case, the court grappled with the tricky question of when a government entity or public employee can invoke the protections of the anti-SLAPP laws.

City of Montebello involved three former City Council members using the anti-SLAPP law to ward off a suit by the City alleging the council members approved a government contract in which they had a financial interest which raised the more general issue of when government defendants, either individual or entity, can use the anti-SLAPP law. And while that might seem to be a straightforward analysis, it is not. Courts and scholars around the country disagree on whether government agencies and employees in general have a constitutional right to free speech. At the moment, there does not appear to be any clear consensus.

California, though, is a different story. Here, the courts have generally sided in favor of government entities having some free speech rights. This appears to have originated in Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251, which was not an anti-SLAPP case. But, in that case, the court did hold that public entities or employees can enjoy some free speech protections.

Then, in Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, the court, relying on Nadel, held that because a government entity “can only speak through its representatives” and a public entity can be held vicariously liable for the conduct of its employees acting in the course and scope of their employment, government entities are “persons” under the anti-SLAPP law. Bradbury is, thus, considered to be one of the key cases in allowing government use of the anti-SLAPP laws.

Unfortunately, Bradbury has been read by some courts as protecting nearly all governmental action or process so long as the subject matter of the suit arguably falls under one of the four categories spelled out in the anti-SLAPP law. This is a troublesome interpretation because the way the anti-SLAPP statute is written could encompass basically everything a government entity does or says. So, ironically, government entities and employees could end up with far greater protection under the anti-SLAPP laws than private citizens.

This problem has not gone unnoticed. Courts have commented this expansive interpretation would burden the right to free speech and “ironically impose an undue burden upon the very right of petition for those seeking [relief] in a manner squarely contrary to the underlying legislative intent behind [the anti-SLAPP statute].” Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1224–1225.

Fortunately, the California Supreme Court has arguably imposed some limitations on this approach. In Vargas v. City of Salinas (2009) 46 Cal.4th 1, the high court seemingly held that anti-SLAPP only protects government actors for statements “that would fall within the scope of the statute if such statements were made by a private individual or entity.” Id. at p. 15.

This holding itself is not without ambiguity, though, as determining the precise contours of that limitation may prove difficult in some cases. Indeed, a literal reading of this could lead to an arbitrarily narrow read of the anti-SLAPP law since any time a public agency or official engages in activity unique to government actors, the anti-SLAPP statute would not apply. Also, the court ducked the tougher constitutional question and simply said California’s anti-SLAPP statute does not require a constitutional foundation, i.e., if the statute says the conduct is protected, it is protected regardless of underlying constitutional issues.

Which brings us back to City of Montebello. In that case, the Supreme Court agreed the individual council members were protected by the anti-SLAPP laws because they were being sued for their voting decisions and public legislative meetings are “conduct in furtherance of the council members’ constitutional right of free speech in connection with public issues …” City of Montebello, supra, at p. 423. But in making that holding, the court also pointed out the analysis is different when the entity is the defendant rather than its individual actors. Looking at an earlier line of decisions, the high court held there is a “distinction between action taken by a governmental body and the expressive conduct of individual representatives.” As such, the court held there will be instances where elected officials could assert the protections of section 425.16 while the public entity itself could not.

Because there were no entity defendants in City of Montebello, the court did not have occasion to say exactly how this differentiation should play out. But the strong implication from the court’s discussion is that a public entity’s ability to raise the anti-SLAPP law as a defense is much more limited than a public employee’s. This issue remains to be resolved by future decisions.

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Jeremy K. Robinson is a partner with San Diego-based Casey Gerry Schenk Francavilla Blatt & Penfield, LLP, and chair of the firm’s Motion and Appellate Practice

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