PostscriptCalifornia Law
Anti-Anti-SLAPP: How the Judiciary’s Narrowing of California’s Anti-SLAPP Law Could Thwart Legislative Intent
by Andy Black*

Vol. 93, Postscript (June 2019)
94 S. Cal. L. Rev. Postscript 144 (2021)

Keywords: California Law, Freedom of Speech, Politics


Since 2015, state Anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) laws that were enacted to prevent litigious plaintiffs from silencing a defendant’s First Amendment rights have come under attack from state and federal courts.[1] California Civil Procedure § 425.16 (“§425.16”), California’s anti-SLAPP law, is particularly susceptible to this judicial narrowing, as it is widely considered the broadest anti-SLAPP statute in the country.[2] Indeed, the California Supreme Court in the 2019 case Inc. v. Double Verify Inc. narrowed § 425.16’s applicability by articulating a stricter context-based standard for protected conduct under the statute’s catchall subdivision, § 425.16(e)(4).[3

This Article argues that this stricter standard is unwarranted in light of § 425.16’s legislative intent, previous California Supreme Court § 425.16 rulings, and the reasonable protections built in to § 425.16 for plaintiffs. Moreover, the court’s underlying frustration with § 425.16 overuse will likely be exacerbated, not ameliorated, by this stricter standard. Additionally, the vulnerable defendants § 425.16 was intended to help, in particular online watchdogs, will likely suffer the most under this stricter standard. This Note concludes that the California Legislature should act to clarify § 425.16(e)(4) or risk continued judicial efforts to narrow its applicability and potentially thwart its legislative purpose.

         [1].     See, e.g., Planned Parenthood Fed’n of Am. v Ctr. for Med. Progress, 890 F.3d 828 (9th Cir. 2018) (restricting § 425.16’s use in the Ninth Circuit); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019) (restricting use of Texas’s anti-SLAPP law in the Fifth Circuit); Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623 (Minn. 2017) (striking down Minnesota’s anti-SLAPP law as unconstitutional); Davis v. Cox, 351 P.3d 862 (Wash. 2015) (striking down Washington’s anti-SLAPP law as unconstitutional).

         [2].     See Jerome I. Braun, California’s Anti-SLAPP Remedy After Eleven Years, 34 McGeorge L. Rev. 731, 732 (2003) (claiming § 425.16 was the most ambitious and far-reaching anti-SLAPP statue at the time it was enacted); Frank J. Broccolo & Laura L. Richardson, Calif. Case Law Is an Excellent Anti-SLAPP Resource, Law360 (Feb. 28, 2014, 1:42 PM ET) (“[§ 425.16] remains one of the broadest [anti-SLAPP provisions] in the nation”).

         [3].     See Inc. v. DoubleVerify Inc., 439 P.3d 1156, 116568 (Cal. 2019).