• • Hostility: It is a formal term for intense dislike, hatred, or bad blood, often rooted in prejudice.
  • Legal/Formal Usage: It can describe the “intent” or motivating spirit behind an action (e.g., animus furandi — intention to steal).
  • Examples:
     “The politician’s
    animus
     toward her rival was clear” or “He harbors no personal
    animus
    .”

animus meaning in law

• State of Mind: It represents the subjective intention (the “mind with which a thing is done”) rather than just the physical act itself.
• Specific Legal Terms: It is used to define specific legal intent, such as animus possidendi (intention to possess), animus revocandi (intention to revoke a will), or animus donandi (intention to give).
• Discrimination/Hostility: In civil rights law, “class-based animus” refers to malicious, hostile, or prejudicial intent toward a specific group.
• Criminal Law: Animus helps determine liability, often distinguishing between accidents and deliberate actions (e.g., animus nocendi or the intent to harm). 

• Criminal Law
  • Animus Furandi: The intention to steal; a necessary element for theft charges.
  • Animus Nocendi: The intention to cause harm or break the law, similar to mens rea.
  • Animus Malus: An “evil intention” or general corrupt state of mind.
• Property & Domicile
  • Animus Manendi: The intention to remain in a place permanently; used to determine a person’s legal domicile.
  • Animus Revertendi: The intent to return; used in property law to establish ownership of animals that habitually return home.
  • Animus Derelinquendi: The intention to abandon or relinquish rights to property.
• Civil & Constitutional Law
  • Animus Testandi: The specific intention to make a valid will.
  • Unconstitutional Animus: A doctrine where the Supreme Court invalidates laws if they were passed with a “bare desire to harm” a politically unpopular group.
  • Animus Donandi: The intention to give a gift, which is required for a transfer of property to be legally considered a gift. 

Getty Images

Jesse Louis Jackson Sr. (1941-2026)

On July 22, 2024, the California Supreme Court ruled in Downey v. City of Riverside (S280322) that a bystander could assert a claim for negligent infliction of emotional distress (“NIED”) for a traumatic event heard through the phone. In a unanimous 7-0 opinion, the Court held that a bystander could “witness” an accident by hearing it, even if the bystander was not physically present and was unaware of the defendant’s role in causing the victim’s injury at the time of the incident.

Plaintiff Jayde Downey (“Downey”) was on a cell phone call with her daughter, giving her driving directions. During the call, Downey allegedly heard her daughter gasp in fear and shock, followed by the sounds of an explosive metal-on-metal vehicular crash, shattering glass, and rubber tires skidding or dragging across the asphalt. As the sound of tires faded, Downey, hearing no sounds or vocalizations from her daughter, understood that her daughter was injured so seriously that she could not speak. A good Samaritan at the scene confirmed Downey’s fears when he told Downey on the phone to quiet down so he could “find a pulse.”

Downey filed suit against the adverse driver, the City of Riverside, and the owners of a private property adjacent to the intersection where the accident occurred. She alleged that the intersection and the adjacent property created an unreasonable and foreseeable risk of injury. She sought damages for the emotional distress she allegedly suffered as a result of hearing her daughter’s car crash. Downey’s claim was initially dismissed on demurrer, and the Court of Appeal affirmed the trial court’s order. Ultimately, the order was further appealed and heard by the California Supreme Court.

The call that changed it all: California Supreme Court expands standard for bystander claims of negligent emotional distress

For decades, the ruling case for NIED claims in California has been Thing v. La Chusa (1989) 48 Cal.3d 644, 668. In that case, the California Supreme Court established three elements for bystander NIED claims: (1) the victim was a close relative of the plaintiff, (2) the plaintiff was present at the event and aware that the event was causing injury, and (3) the plaintiff suffered serious emotional distress as a result.

In Downey’s case, the second element of presence was at issue. Defendants argued that Downey had no contemporaneous awareness of the purported dangerous conditions of the intersection and adjacent property. Plaintiff argued that it was unnecessary for her to show contemporaneous awareness of Defendants’ tortious conduct and the causal connection between the intersection and the accident. Rather, Plaintiff argued that auditorily sensing the incident through the phone was sufficient.

The California Supreme Court held that Downey satisfied the second element of awareness and reversed and remanded the judgment of the Court of Appeal. Justice Leondra Kruger stated, “For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters.” Justice Kruger further clarified, “The emotional trauma that comes from witnessing such an accident exists regardless of whether the plaintiff is aware at the time of the accident of all the individuals or entities that have contributed to the accident through their conduct.”

The California Supreme Court’s ruling in Downey greatly expands the ability of bystanders to sue for NIED claims. While previously, a plaintiff needed to demonstrate a “contemporaneous awareness not only of the injury to their loved one but also of the defendant’s role in causing the injury,” Downey represents a shift of focus to the emotional impact and trauma without necessarily being present at the scene of the incident.

more on Emotional Distress below

source
source

Jim Sensenbrenner (R-WI), the author of the original USA PATRIOT Act, disagrees.

In a amicus brief filed in support of the American Civil Liberties Union’s lawsuit against the National Security Agency’s bulk collection of U.S. phone records, Sensenbrenner argues that the government has gone far beyond what the legislation authorizes.

Section 215, known as the business records provision, authorizes intelligence agencies to apply for information if “the records are relevant to an ongoing foreign intelligence investigation.”

In practice, the NSA uses section 215 to collect data pertaining to every phone call to, from, and within the U.S. in the name of combating terrorism.

Sensenbrenner and the other members of Congress who enacted Section 215 “did not intend to authorize the program at issue in this lawsuit or any program of a comparable scope,” according to the brief.

The brief goes on to propose this question (emphasis ours):

The NSA is gathering on a daily basis the details of every call that every American makes, as well as every call made by foreigners to or from the United States. How can every call that every American makes or receives be relevant to a specific investigation?“

Filed by the Electronic Frontier Foundation, the brief notes that Sensenbrenner “was not aware of the full scope of the program when he voted to reauthorize Section 215” and would have voted against it if he had known.

In Sensenbrenner’s words: “The suggestion that the administration can violate the law because Congress failed to object is outrageous. But let them be on notice: I am objecting right now.”  source

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Anti-SLAPP statutes are laws intended to curb – and, often, penalize – the filing of Strategic Lawsuits Against Public Participation or a “SLAPP.” A SLAPP is a lawsuit that, on its face, attempts to impose liability on a defendant for harm arising from speech

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

California’s anti-SLAPP statute (Code Civ. Proc. § 425.16) provides a powerful tool to early-dismiss lawsuits targeting speech on matters of public concern. Below, we survey key published, precedential cases from the past decade (2015–2025) – with a few landmark earlier cases – in which defendants (often journalists, media outlets, or online speakers) prevailed on anti-SLAPP motions against defamation and emotional distress claims. We organize the cases by court and highlight the facts, outcomes, and legal significance, followed by overarching themes and trends.

California Supreme Court

• Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) – Anti-SLAPP procedure for mixed claims. The Court held that an anti-SLAPP motion may target specific allegations within a cause of action arising from protected speech, rather than the entire cause of action. This clarified that courts can strike the protected activity allegations (e.g. statements) while allowing any unprotected claims to proceed​casp.net

  . Outcome: The defendant’s motion was ultimately granted in part, striking the allegations based on an audit report that constituted protected speech. Significance: Baral strengthened anti-SLAPP’s effectiveness by permitting partial strikes, preventing plaintiffs from evading the statute by embedding protected speech inside broader claims.

• Park v. Board of Trustees of CSU, 2 Cal.5th 1057 (Cal. 2017) – Limiting scope to claims “arising from” speech. The plaintiff sued a university for discrimination after being denied tenure, and the university filed an anti-SLAPP motion because the tenure decision was communicated in a letter. The Supreme Court denied the motion, clarifying that a lawsuit must be caused by protected speech to fall under anti-SLAPP – merely communicating a decision is not enough​casp.net

  . Outcome: The anti-SLAPP motion was denied as the gravamen of the claim was discrimination, not the speech about it. Significance: Park refines prong one of the anti-SLAPP test by requiring a tight nexus between the challenged claim and the defendant’s speech. It ensures anti-SLAPP is focused on true First Amendment issues and not routine conduct.

  FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (Cal. 2019) – “Public issue” defined in context. A website operator sued a media metrics company for disparaging reports sent to its paying clients, and the defendant invoked anti-SLAPP. The Supreme Court articulated a context-specific test for whether speech is “in connection with” a public issue​casp.net

  . Outcome: It held that while the subject of the reports (online content piracy) was a public issue, the context—private subscriber reports—meant the speech did not further public debate, so anti-SLAPP protection was denied​casp.net

  . Significance: FilmOn imposes a nuanced, multi-factor inquiry into context, audience, and speaker intent in prong one. It narrowed the scope of what communications qualify as public-interest speech, focusing on whether the speech contributes to public discussion​casp.net

  .

• Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019) – Media employer’s speech vs. employment claims. A former CNN journalist sued for race discrimination and defamation after being fired. CNN’s anti-SLAPP motion was denied on the discrimination claims, and the Supreme Court agreed. It reasoned the firing was not “in furtherance” of free speech rights – the lawsuit was about unlawful discrimination, not the content of CNN’s news reporting​dwt.com

  . Outcome: The Court held anti-SLAPP did not apply to the non-defamation claims (wrongful termination, etc.), though the accompanying defamation claim (challenging statements about the firing) did arise from protected news commentary. Significance: Wilson (building on Park) underscores that employment or harassment claims against media companies won’t be struck simply because the employer is engaged in speech business. Only claims truly based on speech on issues of public interest (e.g. a defamatory explanation given to the public) trigger the statute​dwt.com

  .

• Monster Energy Co. v. Schechter, 7 Cal.5th 781 (Cal. 2019) – Attorney speech and public interest. Although not a defamation case, this decision held that a lawyer’s public statements about a product liability settlement were protected petitioning speech. Outcome: The suit against the lawyer was dismissed. Significance: It highlights how anti-SLAPP protects attorneys and participants speaking about litigation in the public arena, reinforcing protections for legal advocacy in the court of public opinion.

(Major earlier Supreme Court precedents):

• Gates v. Discovery Communications, Inc., 34 Cal.4th 679 (Cal. 2004) – A TV network aired a true-crime documentary about a man’s criminal past. He sued for invasion of privacy (having dropped defamation). The Court held the broadcast was newsworthy and protected by the First Amendment, making it “impossible for Gates to prevail”​casp.net

  . Outcome: Anti-SLAPP struck the privacy claim. Significance: Even a harmful depiction of someone’s past crimes was shielded as a matter of public interest; truthful, newsworthy publications cannot give rise to liability for emotional distress or privacy when public concern is involved​casp.net

  .

• Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) – An attorney’s pre-suit letter threatening to expose a rape allegation unless paid was deemed extortion, which is illegal conduct not protected by free speech. Outcome: The lawyer’s anti-SLAPP motion was denied under the narrow exception for speech “illegal as a matter of law.” Significance: This carved out a “narrow” exception to anti-SLAPP for egregious conduct like extortion, ensuring genuinely criminal speech cannot hide behind First Amendment protections​casp.net

  .

• Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) – Established that a defendant can invoke anti-SLAPP even if the underlying dispute wasn’t initially about free speech. Here, a counterclaim alleging fraud in the context of exercising settlement rights was struck as a SLAPP​casp.net

  . Significance: The anti-SLAPP law is to be construed broadly; even claims “incidental” to expressive conduct (like signing a release or filing a lawsuit) can be protected petitioning activity.

• Briggs v. Eden Council, 19 Cal.4th 1106 (Cal. 1999) – The Court’s first anti-SLAPP case, holding the statute protects “any lawsuit arising from the exercise of the right to petition or free speech” regardless of public significance​casp.net

  . Significance: Confirmed the Legislature’s intent that anti-SLAPP be applied broadly to protect all manner of petitioning speech, not only speech on government matters​casp.net

  .

California Courts of Appeal

Media Defendants (Journalists & News Publishers): California courts have consistently protected journalists and news outlets from defamation suits over reporting on matters of public concern – especially when the content is true or sourced from official records.

• Colt v. Freedom Communications, Inc., 109 Cal.App.4th 1551 (Cal. Ct. App. 2003) – A newspaper reported on SEC accusations of stock fraud against the plaintiff, who sued for defamation. The court affirmed dismissal under anti-SLAPP: the articles plainly involved a public issue (securities enforcement) and were protected as fair and true reports of official proceedings​casp.net

  . The defendant was also immune under California’s fair report privilege (Civ. Code § 47), and plaintiff offered no credible evidence of actual malice​casp.net

  . Outcome: Anti-SLAPP motion granted; case dismissed. Significance: Accurate news reports on government allegations are firmly protected. The decision underscores that truth and privilege are complete defenses – if the content was based on public records and the plaintiff cannot show it’s false or published with “actual malice”, a defamation claim has no probability of prevailing​casp.net

• Jackson v. Mayweather, 10 Cal.App.5th 1240 (Cal. Ct. App. 2017) – Celebrity boxer Floyd Mayweather’s ex-fiancée sued him for defamation, false light, and intentional infliction of emotional distress after he publicly posted on Facebook about her abortion and discussed her cosmetic surgeries in a radio interview. The Court of Appeal held Mayweather’s statements were made in a public forum and concerned issues of public interest – namely, a high-profile couple’s relationship and a celebrity’s image​law.justia.com

  . It found the claims arose from protected speech and that the plaintiff failed to show a probability of prevailing. Outcome: The defamation, false light, and public-disclosure claims were stricken (the court only left intact a narrow portion of the privacy claim)​law.justia.com

  . Significance: Even speech about personal matters can be a public issue if it involves public figures or online discourse that the public is following. The decision acknowledged that Mayweather’s social media commentary, though deeply offensive to the plaintiff, was part of public conversation about a celebrity couple, and the plaintiff could not prove the statements false (in fact, she had undergone the procedures)​law.justia.com

  . This highlights that “negative but true” content – even very private facts – may be protected when the individuals are famous or the subject is newsworthy.

• Daniel v. Wayans, 8 Cal.App.5th 367 (Cal. Ct. App. 2017) – Actor Marlon Wayans was sued by an extra (Pierre Daniel) for racial harassment, misappropriation, and IIED after Wayans joked on Twitter that Daniel looked like a cartoon character and even used a racial slur in a teasing manner on set. The court granted Wayans’s anti-SLAPP motion, ruling that his “allegedly harassing and offensive” tweets and remarks were protected free speech made in connection with an issue of public interest​thewrap.com

  . Wayans was in the midst of creating and promoting a comedy film; his on-set banter and tweet were part of his creative process and social commentary in the comedy context, which the court deemed protected expression​thewrap.com

  . Outcome: The lawsuit was dismissed and Wayans recovered his attorneys’ fees. The court found that the tweet – “Tell me this n—- don’t look like…THIS n—-!!! Ol Cleveland Brown ass looking” – was protected satire and opinion, not a statement of fact, and that using the extra’s photo in a comic tweet was transformative fair use​thewrap.com

  It also held the conduct was not “outrageous” beyond First Amendment protection. Significance: Daniel v. Wayans illustrates that artistic and comedic expression, even if crass or insulting, can qualify as speech on a matter of public interest (here, a film and its characters) when disseminated publicly. The court emphasized the need to protect creative works and promotion of entertainment under the anti-SLAPP law, noting that holding such speech liable (absent false assertions of fact) would chill comedians and artists​thewrap.com

  ​

• Cross v. Cooper, 197 Cal.App.4th 357 (Cal. Ct. App. 2011) – A resident created and distributed a flyer titled “Meet Your New Neighbor” with the photo and Megan’s Law sex-offender registry information of the plaintiff, warning the community about him. The plaintiff sued for defamation and emotional distress. The court struck the suit under the anti-SLAPP statute, finding the conduct was quintessential speech on a matter of public concern: “the strong and widespread public interest in knowing the location of registered sex offenders”caselaw.findlaw.com

  . Because the flyer’s factual content about the plaintiff’s convictions was true and obtained from a public registry, he could not show a likelihood of prevailing on any defamation or IIED claim. Outcome: Anti-SLAPP granted, dismissing the lawsuit. Significance: This case confirms that republishing publicly available, truthful information – even if highly stigmatizing – is protected. Using a person’s publicly posted photo and record to alert the community was deemed lawful and protected speech about public safety. The decision reinforced that truth is an absolute defense and that the First Amendment does not permit liability for emotional distress when the underlying facts are true and concern public welfare​caselaw.findlaw.com

Online Reviews, Bloggers, and Social Media Speech: Many defamation/IIED SLAPP suits in the last decade have targeted consumer reviews or Internet posts. Courts have largely sided with defendants, recognizing online platforms as public forums and the posts as commentary on issues that can be of public interest (e.g. consumer protection, professional quality, community matters).

• Wong v. Jing, 189 Cal.App.4th 1354 (Cal. Ct. App. 2010) – A Yelp review by parents criticizing a dentist’s treatment of their child led to the dentist suing for libel and emotional distress. The Court of Appeal held the review was made on a public Internet forum and concerned the quality of dental services – a matter of interest to other consumers. It ruled that six of the seven causes of action should have been stricken under the anti-SLAPP law​casp.net

  (one minor claim was remanded). Significance: Wong set an early example that outspoken consumer reviews on sites like Yelp are generally protected opinion or at least subject to anti-SLAPP. Statements about a professional’s services affect the public (prospective patients) and thus meet the public-interest requirement. Unless a reviewer’s factual assertions are provably false and made with actual malice, defamation claims will likely fail.

• Chaker v. Mateo, 209 Cal.App.4th 1138 (Cal. Ct. App. 2012) – In a contentious personal dispute, a woman (and her mother) posted negative comments about her ex-boyfriend on RipoffReport and Topix, accusing him of being a fraud, a deadbeat dad, and having a shady business. The court had “little problem” finding these online postings protected by the anti-SLAPP statute​blog.ericgoldman.org

  ​

  The Internet is a “classic public forum” open to billions, and the posts about Chaker’s character and business practices fell within “the rubric of consumer information” intended as a warning to others about his trustworthiness​blog.ericgoldman.org

  ​

  Outcome: The defamation claim was struck. The court noted that even though the dispute was personal, the content – allegations of dishonest business practices – could inform consumers and thus was an issue of public interest​blog.ericgoldman.org

  Significance: Chaker broadened the interpretation of “public interest” to include internet discussions blending personal grievances with consumer caution. It confirmed that online forums facilitate an exchange on everything from “great issues of war [to] the relative quality of chicken pot pies,” and that posts aiming to flag someone’s reliability in commerce qualify as speech on a matter of public concern​ blog.ericgoldman.org

  This case is frequently cited to argue that consumer review sites and complaint boards are public fora and that criticism of a person’s business conduct is protected speech​ blog.ericgoldman.org

• Grenier v. Taylor, 234 Cal.App.4th 471 (Cal. Ct. App. 2015) – Former parishioners accused their church pastor of wrongdoing on an internet blog, and the pastor sued for defamation and emotional distress. The court struck some claims and allowed others, illustrating the line between opinion and fact. Outcome: Allegations that could be seen as opinion or religious matters (thus non-verifiable) were protected, but one specific factual accusation was allowed to proceed since the plaintiff showed it was likely false. Significance: Grenier shows courts will parse each statement in an online post – protecting harsh opinions or rhetoric about public figures (even religious leaders) while allowing truly defamatory factual allegations (if provably false and damaging) to go forward past prong two.

• Cross v. Facebook, Inc., 14 Cal.App.5th 190 (Cal. Ct. App. 2017) – After Cross v. Cooper (the Megan’s Law case above) was dismissed, the plaintiff attempted to sue Facebook for hosting the content. That suit was defeated not only by Section 230 immunity but also characterized as a SLAPP. The court noted that holding platforms liable for users’ protected posts would undermine online speech. Significance: While not a traditional anti-SLAPP merits victory (it was dismissed on immunity grounds), it underscores that plaintiffs sometimes try to circumvent anti-SLAPP wins by targeting platforms, an approach courts have rejected in favor of broad speech protections.

SLAPP back: Suits Against Malicious Litigants or Lawyers: California law permits a prevailing SLAPP defendant to sue back for malicious prosecution (sometimes called a “SLAPPback”) if the original suit was baseless and filed with malice. Several cases demonstrate this accountability:

• Jay v. Mahaffey, 218 Cal.App.4th 1522 (Cal. Ct. App. 2013) – After a real estate dispute, attorney Mahaffey had added 45 limited partners (innocent third parties) as defendants in a lawsuit solely to pressure the main defendant. When that suit failed, those individuals sued Mahaffey and her firm for malicious prosecution. The defendants (the lawyers) filed anti-SLAPP motions, but the courts found the limited partners had established a prima facie case of malicious prosecution (no probable cause for the prior suit and evidence of malice)​ ocbar.org

  . The Court of Appeal affirmed the denial of the anti-SLAPP motions, ruling that Mahaffey’s aggressive tactic of suing uninvolved parties was grounds for a malicious prosecution claim​ ocbar.org

  . Outcome: The malicious prosecution case proceeded to trial, resulting in a judgment holding the attorney liable for roughly $400,000 in damages and fees. Significance: Jay v. Mahaffey is a cautionary tale for attorneys: those who file frivolous, harassing lawsuits can not only lose under anti-SLAPP but also face personal liability for malicious prosecution. It highlights that California courts will protect targets of SLAPPs by allowing them to seek redress against lawyers who abuse the court system. As the court noted, a plaintiff must have a legitimate cause of action – suing “clearly non-liable” parties just to exert leverage invites a malicious prosecution suit​ ocbar.org

• Daniels v. Robbins, 182 Cal.App.4th 204 (Cal. Ct. App. 2010) – In an earlier notable case, a lawyer was sued for malicious prosecution for pursuing an underlying lawsuit that lacked merit. The court held the anti-SLAPP statute did apply (malicious prosecution suits arise from petitioning activity), but that the plaintiff had shown a probability of success (the prior case ended in his favor and without probable cause). Outcome: The anti-SLAPP motion by the attorney was denied and that denial affirmed on appeal, allowing the suit to go forward. Significance: Daniels (and later cases like Jay) establish that a well-founded malicious prosecution claim can overcome an anti-SLAPP motion – in other words, the law shields the wrongly sued, not the wrongdoer. California even has a specific provision (CCP §425.18) limiting anti-SLAPP delays in “SLAPPback” cases, reflecting the Legislature’s intent to let victims of SLAPPs seek damages.

• Paiva v. Nichols, 168 Cal.App.4th 1007 (Cal. Ct. App. 2008) – Here, former defendants sued a plaintiff’s lawyers for malicious prosecution after winning a SLAPP dismissal in the underlying case. The court emphasized that anti-SLAPP protections don’t bar a malicious prosecution claim if the prior suit was ultimately resolved in defendants’ favor. Significance: It confirms that the favorable termination of a SLAPP – e.g. dismissal on the merits or via anti-SLAPP – can tee up a new claim against the instigators, incentivizing truthfulness and discouraging truly frivolous suits.

In sum, California appellate courts have routinely upheld anti-SLAPP motions for speakers ranging from newspaper publishers to Yelp reviewers, while also permitting “countersuit” remedies against those who misuse the courts. The common thread is a robust protection of speech, especially speech involving public participation, coupled with consequences for meritless litigation.

U.S. Supreme Court

Although there is no federal anti-SLAPP statute, U.S. Supreme Court First Amendment jurisprudence provides the backbone principles that often determine SLAPP outcomes. Several landmark Supreme Court cases – some recent, some decades-old – establish strong freedom-of-speech protections in defamation and IIED (intentional infliction of emotional distress) cases, which California courts in turn apply through the anti-SLAPP framework:

• New York Times Co. v. Sullivan, 376 U.S. 254 (1964) – This seminal case constitutionalized defamation law. The Supreme Court held that public officials (and later, public figures) must prove “actual malice” – that a defamatory statement was made with knowing falsity or reckless disregard for truth – to recover damages​ supreme.justia.com

  ​

  . The Court recognized that erroneous statements are inevitable in free debate and must be protected to give breathing space to the First Amendment​ en.wikipedia.org

  . Significance: Sullivan greatly raised the plaintiff’s burden in defamation suits, especially for media defendants. It shifted the proof of falsity onto the plaintiff and shielded publishers from liability for mere negligent mistakes​ supreme.justia.com

  . This doctrine is echoed in anti-SLAPP prong two analyses – many defamation claims against news outlets fail because the plaintiff cannot show evidence of actual malice​casp.net

  . Sullivan’s legacy, as one court noted, was to give “substantial protections to defendants such as newspapers” by requiring robust proof of fault​supreme.justia.com

  , thereby thwarting the vast majority of SLAPP-style defamation suits by public figures.

• Hustler Magazine v. Falwell, 485 U.S. 46 (1988) – The magazine Hustler ran a parody ad depicting evangelist Jerry Falwell in a lewd, false scenario. Falwell sued for IIED (having already lost his libel claim because the parody was patently fictitious). The Supreme Court unanimously overturned the emotional-distress verdict in Falwell’s favor. It held that a public figure cannot recover for IIED based on a caricature or parody without showing the publication contained a false statement of fact made with actual malice​ en.wikipedia.org

  . Simply put, outrageousness is not a sufficient benchmark when free speech is at stake​ en.wikipedia.org

  . The Court warned that allowing liability for speech intended to inflict emotional harm – in the absence of any falsity – “would subject political cartoonists and other satirists to large damage awards” for doing what satirists do: exaggerating and ridiculing​ en.wikipedia.org

  . Significance: Hustler v. Falwell extends Sullivan’s shield to emotional distress torts, protecting even speech that is intentionally caustic or offensive, so long as it does not state actual defamatory falsehoods. It cemented the principle that public figures cannot use IIED claims as an “end-run” around First Amendment safeguards for satire and opinion. This ruling is frequently invoked in SLAPP cases to defend harsh criticism and parody. For example, California courts citing Hustler have refused to find speech “outrageous” enough to lose protection unless it also includes provably false assertions of fact​ thewrap.com

• Snyder v. Phelps, 562 U.S. 443 (2011) – In a modern echo of Falwell, the Court held that the Westboro Baptist Church’s offensive funeral picketing (with signs like “Thank God for Dead Soldiers”) was protected by the First Amendment against tort claims by the fallen soldier’s family. The speech, however hurtful, addressed matters of public concern (the nation’s morality, the military, etc.) in a public place. Therefore, it could not form the basis of liability for IIED or intrusion as a matter of law​ en.wikipedia.org

  . The Court emphasized that speech on public issues, to which the listeners could avert their eyes, occupies “the highest rung of the hierarchy of First Amendment values”. Significance: Snyder reaffirmed that speech cannot be punished simply because it causes pain or outrage, if it is on political or social issues. Even a private plaintiff (not a public figure) could not recover for emotional distress because the defendants spoke on a public matter at a public event​ en.wikipedia.org

  . This decision resonates in anti-SLAPP analyses: it draws a bright line that speech on public affairs – however unpleasant – is immune from tort liability for emotional harm. California courts have cited Snyder in holding that vehement online commentary or protests on public concerns are protected from IIED claims. Essentially, if speech is about a broader issue and not a targeted private harassment, Snyder instructs that the First Amendment prevails.

• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) – The Supreme Court balanced the rights of private individuals and media defendants. It held that private-figure defamation plaintiffs need not prove actual malice to recover actual damages, but they must show at least negligence, and cannot recover punitive damages without actual malice. It also declared there is no constitutional value in false statements, but States cannot impose liability without fault. Significance: Gertz is reflected in California law by distinguishing public vs. private plaintiffs in anti-SLAPP prong two: a private figure may have an easier path to show probability of success (no malice requirement) unless the speech was about a public issue. But California’s anti-SLAPP still often shields defendants if the private figure cannot show the statements were false or made negligently. Moreover, if the speech is on a public matter, Gertz’s logic combined with Sullivan means even private plaintiffs often effectively need to prove malice to get presumed or punitive damages – a high hurdle in SLAPP cases​ casp.net

  .

• Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) – The Court clarified that there is no wholesale exemption for “opinion” in defamation law; rather, a statement of opinion can be actionable if it implies an assertion of objective fact. However, pure opinions or subjective critiques that “cannot reasonably be interpreted as stating actual facts” are fully protected. Significance: This principle is a staple in SLAPP defenses: defendants often argue that their allegedly defamatory remarks were non-actionable opinion or hyperbole. For example, calling someone a fraud or comparing them to a cartoon character can be defended as opinion in context​ thewrap.com

  , especially on Internet forums where rhetorical flourish is common. California courts, following Milkovich, assess the totality of circumstances – a key factor in prong two – to decide if a statement was factual enough to be proven true/false or just opinion. If it’s the latter, the plaintiff cannot meet the burden of showing probable success.

(Additional relevant rulings): Bartnicki v. Vopper (2001) protected the publication of truthful information on a public issue even if obtained unlawfully by a third party, reinforcing that media defendants are insulated when disseminating matters of public concern. Cox Broadcasting v. Cohn (1975) and Florida Star v. B.J.F. (1989) held that publishing publicly available information (like a rape victim’s name from court records or police reports) cannot lead to liability, as the First Amendment shields the press’s right to report official public proceedings​ casp.net

. These cases buttress California courts’ inclination to protect the use of publicly posted content (such as social media photos or public records) in reporting or commentary. If a plaintiff voluntarily exposed information or it’s a matter of public record, any privacy or emotional distress claim will likely fail under First Amendment scrutiny, as seen in outcomes like Gates v. Discovery and Cross v. Cooper.

Federal Courts in California (Ninth Circuit & District Courts)

Federal courts in California (applying state anti-SLAPP law in diversity cases) have similarly favored defendants in defamation and related suits implicating free speech. The Ninth Circuit generally permits the use of California’s anti-SLAPP statute in federal suits (for state law claims), and several high-profile cases in the last decade underscore the trend of protecting speech:

• Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) – A U.S. Army sergeant sued the makers of the film The Hurt Locker, claiming a character was based on him and defamed him. The Ninth Circuit applied California’s anti-SLAPP law and struck the claims. It held that the film’s depiction of the Iraq War and a bomb disposal technician touched on issues of public interest – “the conduct of the Iraq War” – satisfying prong one​ dwt.com

  . On prong two, the court found the sergeant could not show the filmmakers portrayed actual false facts about him (the film character was a composite and not named the same) or that they acted with malice. Outcome: The defamation and false-light claims were dismissed as a SLAPP. Significance: Sarver affirmed that creative works based on real events are protected by the First Amendment. The decision explicitly rejected an argument to treat the plaintiff as a private figure uniquely harmed; instead it found he was drawn into an issue of public concern (war heroism). This case is often cited for the proposition that sharing someone’s story as part of commentary on a public event is protected speech, and plaintiffs cannot claim emotional distress for how they were depicted if no provable falsity or actual malice exists​ dwt.com

  .

• Herring Networks, Inc. v. Maddow, 445 F.Supp.3d 1042 (S.D. Cal. 2020), aff’d, 8 F.4th 1148 (9th Cir. 2021) – One America News Network (OAN) sued MSNBC host Rachel Maddow for defamation after she exclaimed on-air that OAN “really literally is paid Russian propaganda.” The federal court granted Maddow’s anti-SLAPP motion and dismissed the case, finding her statement was hyperbolic opinion based on disclosed facts (an article reporting an OAN employee also worked for Sputnik, a Russian state outlet). The court ruled that “reasonable viewers would consider the contested statement to be her opinion,” not an assertion of actual fact​ casetext.com loeb.com

  . OAN itself conceded the segment was about a matter of public interest (media and foreign influence)​ globalfreedomofexpression.columbia.edu

  . Outcome: The defamation claim was struck and Maddow was awarded attorney’s fees. The Ninth Circuit unanimously affirmed, agreeing that no reasonable viewer would take the “paid Russian propaganda” line as a literal factual accusation, especially coming from an opinionated talk show​ loeb.com

  . Significance: This case highlights how courts analyze context and tone in media defamation claims – a fiery political commentary on cable news was deemed protected, as it “cannot serve as the basis for a defamation claim” when understood as exaggeration or opinion​ loeb.com

  . It also demonstrates federal courts’ willingness to apply anti-SLAPP to dispose of suits against news commentary swiftly. Maddow’s win (and the fee-shifting) reinforces the idea that defamation suits brought by public figures or corporations (here, a news network) face an uphill battle if the challenged speech is opinion based on disclosed true facts​ loeb.com

• Makaeff v. Trump University, LLC, 715 F.3d 254 (9th Cir. 2013) – In an earlier notable case, a consumer (Makaeff) wrote online complaints accusing Trump University of fraudulent practices. Trump University sued her for defamation, and she countered with an anti-SLAPP motion. The Ninth Circuit held that Trump University, a public figure for First Amendment purposes, had to show a likelihood of proving Makaeff’s statements were made with actual malice. The court ultimately found Trump University could not meet that burden, and it dismissed the defamation suit as a SLAPP, also awarding fees​ casp.net

  . (Later, Makaeff was permitted to dismiss her own remaining claims, as the purpose of the anti-SLAPP motion – to fend off the libel suit – was achieved.) Significance: Makaeff was significant for recognizing that large companies engaged in public controversy (here, allegations of scamming students) are treated like public figures. It also led to a certified question in California about recovery of fees when a SLAPP plaintiff voluntarily dismisses – California answered that defendants are still entitled to fees in such scenarios. This case put would-be plaintiffs on notice that suing their outspoken critics can backfire, especially when the critic is an unhappy customer speaking on a matter of public interest (consumer protection).

• La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020) – (Not a California court, but involving California law and worth noting) In this case, a woman sued MSNBC host Joy Reid in New York federal court over posts accusing the plaintiff of yelling racist slurs at a public meeting. Reid tried to invoke California’s anti-SLAPP law, but the Second Circuit held California’s law conflicts with federal procedural rules and could not be applied in federal court​ lawreview.uchicago.edu cahill.com

  . This created a circuit split (the Ninth Circuit does allow anti-SLAPP motions in federal court). Reid ultimately lost the immediate protection of anti-SLAPP, though the case was later dismissed on the merits for lack of defamation. Significance: The La Liberte saga underscores a trend: most federal courts in California (Ninth Circuit) embrace anti-SLAPP, but elsewhere its applicability varies. Despite this procedural hiccup, even in La Liberte, the core First Amendment analysis prevailed – the statements were deemed opinion or not made with malice, so Reid prevailed without the anti-SLAPP statute. This highlights that while anti-SLAPP provides procedure, the fundamental free speech principles often decide the outcome regardless.

Overall, in federal courts applying California law, we see the same pattern: when plaintiffs sue over speech on political or societal issues (even sharp-edged or unflattering speech), the courts tend to characterize the speech as opinion or public commentary and dismiss the claims early. The First Amendment’s high bar – especially for public-figure plaintiffs – is rigorously enforced. Notably, California’s mandatory fee-shifting applies in federal court too (when the motion is allowed), which can deter plaintiffs from forum-shopping to federal court to avoid anti-SLAPP.

Themes and Trends

1. Robust Protection for Speech on Public Issues: Across the board, courts prioritize free speech and press rights, especially where the content in question involves a matter of public concern. Negative commentary about public figures, consumer criticism of businesses, reports on crime or misconduct, and even caustic jokes all receive broad protection. As the U.S. Supreme Court put it, “speech on a matter of public concern…cannot be banned simply because it is offensive” en.wikipedia.org

. California decisions echo this – if the speech even arguably contributes to public debate or informs others (from community safety in Cross, to war and politics in Sarver, to consumer vigilance in Chaker), the anti-SLAPP statute’s first prong is usually satisfied. This has shielded journalists, activists, bloggers, and ordinary citizens who speak out. The flip side is that truly private disputes not tied to any broader interest (for example, purely personal gripes unconnected to any public issue) are less likely to get anti-SLAPP protection​ dwt.com, ensuring the law targets genuine SLAPPs and not garden-variety private squabbles.

2. Truth and Opinion as Impenetrable Defenses: A recurring theme is that truthful speech or non-actionable opinion cannot form the basis of liability – a cornerstone of First Amendment jurisprudence reinforced through anti-SLAPP. Many of these cases involve defendants stating uncomfortable truths or opinions: e.g., stating someone has a criminal record (Cross), or giving a scathing opinion on a service (Wong, Chaker). If the plaintiff cannot show the statement is false (or cannot overcome a privilege like fair report), the claim will be stricken​ casp.net

. In Colt v. Freedom Comm., the media defendant prevailed because the reporting was privileged and no malice was shown​ casp.net

. In Herring Networks v. Maddow, the court found the challenged remark was figurative opinion, not a literal assertion, and thus not provably false​ loeb.com

. Over and over, courts emphasize that it’s the plaintiff’s burden to demonstrate a probability of proving falsity and fault at an early stage – a burden most cannot meet absent clear fabrication. Consequently, “negative but true” content is generally safe from defamation liability. Even “mostly true” or substantially true content will doom a plaintiff’s case. And pure opinion or obvious exaggeration (like parody or epithets) is protected as well, since it cannot be interpreted as stating actual facts​ loeb.com 

. The result is a bulwark against lawsuits that seek to punish speakers for merely sharing true information or subjective views.

3. Public Forum and Social Media – New Platforms, Same Protection: The rise of the Internet and social media in the last decade appears frequently in these cases, and courts treat online speech with the same seriousness as traditional journalism. California courts have explicitly recognized the Internet as a vast public forum open to “literally billions”​ blog.ericgoldman.org

, and thus online posts are often considered speech in a public forum concerning public interest (CCP § 425.16(e)(3)). Whether it’s a Yelp review, a Ripoff Report complaint, a Facebook post, or a tweet, the medium does not diminish the speaker’s rights. Chaker v. Mateo was a trailblazer in 2012, ruling that posts on consumer gripe sites about someone’s business practices were in the public interest because they serve as warnings to other consumers​ blog.ericgoldman.org

. In Jackson v. Mayweather, social media was the vehicle for a celebrity’s personal revelations, and the court still found a public interest due to the public figure status and widespread audience​ law.justia.com

. Thus, one trend is the normalization of social media discourse as fully protected participation in public debate. We also see that using content from social media or publicly posted photos can be protected: e.g., Wayans using an image of the plaintiff next to a cartoon was deemed transformative fair use in satire​ thewrap.com

; journalists using photos from a public Facebook profile for a news story would likewise be shielded as long as the story is newsworthy (consistent with Gates and U.S. Supreme Court precedents on public information). In short, online speech is not treated as second-class – courts apply the same First Amendment standards regardless of platform, often to the benefit of online reviewers and commentators facing SLAPPs.

4. Anti-SLAPP’s Expansion and Limitations: Procedurally, the anti-SLAPP law in California has been interpreted expansively in some ways (broad coverage of speech activities) but also subject to careful limits. The California Supreme Court has in recent years fine-tuned the doctrine: Baral allows filtering out unprotected claims early, preventing artful pleading; Park and Wilson ensure that claims not truly based on speech (like discrimination or ordinary business disputes) aren’t struck, preventing overreach​ dwt.com

. Meanwhile, the Legislature added exceptions (like §425.17 for purely commercial speech and §425.18 for SLAPPbacks) to curb misuse. Overall, the trend is that courts celebrate the statute’s role in protecting core free speech (especially in media and political contexts), but remain vigilant that it not sandbag legitimate lawsuits that only incidentally involve speech. The federal courts’ split (highlighted by La Liberte v. Reid) is an example of this dialectic – some see anti-SLAPP as procedural and hesitate to apply it federally. In the Ninth Circuit, however, it is fully embraced, and the trend there is extending anti-SLAPP to as many scenarios as possible in service of First Amendment interests (as evidenced by cases like Maddow and Trump Univ.).

5. Fee Shifting and Deterrence of SLAPPs: A crucial aspect of California’s anti-SLAPP scheme evident from these cases is the fee-shifting provision – a successful movant gets their attorney’s fees. We saw this in virtually every successful case: CNN and others recouped fees from plaintiffs, Maddow got fees from OAN, etc. For example, in Briggs v. Eden Council, the defendants ultimately recovered over $425,000 in fees after defeating the SLAPP​ casp.net

. In Rosenthal (an earlier case involving an Internet repost, referenced in CASP materials), a defendant even obtained $434,000 in fees after winning on Section 230 grounds in an anti-SLAPP context​ casp.net

. This fee mechanism deters plaintiffs (and their lawyers) from filing weak defamation or IIED claims merely to intimidate. Moreover, the advent of malicious prosecution “SLAPPback” suits (as in Jay v. Mahaffey and Soukup v. Hafif) ups the stakes: a SLAPP filer might not only pay fees but also damages for harm caused. The specter of having to pay the defendant’s costs – and possibly face a counter lawsuit – is intended to chill the initiation of SLAPP suits, not the participation in public debate. The cases show this policy in action: the Wayans case ended with the plaintiff owing fees for a frivolous claim about a joke, and in Mayweather, the celebrity likely recovered fees for the portions he won. Themes of accountability run parallel to themes of protection.

6. Freedom of the Press and Press-Like Speakers: Many of these decisions, especially in the last decade, reinforce traditional press freedoms but also extend them to non-traditional speakers. Courts frequently cite First Amendment ideals – e.g., the Hustler court’s paean to the “free flow of ideas and opinions on matters of public interest” en.wikipedia.org

– and they do not distinguish between a professional news outlet and an individual blogger or social media user when the content is comparable. A Yelp reviewer or a Facebook poster receives the same protection for commentary as a newspaper does for an investigative report. By the same token, anti-SLAPP protections have been invoked by large media companies and celebrities (leading some to argue the law meant for the “little guy” is now also a tool for powerful speakers​ thewrap.com

). Still, courts apply the statute neutrally: what matters is whether the subject of the speech is of public significance and whether the nature of the speech is protected, not the identity or size of the speaker. So while Murphy or CNN can use anti-SLAPP against a meritless suit, so can an average citizen blogger. The trend is a democratization of press rights – essentially recognizing that in the Internet age, anyone can be a publisher deserving of anti-SLAPP protection when they speak out on public matters.

In conclusion, the past ten years of California defamation and emotional distress litigation – viewed through published anti-SLAPP decisions – reveal a judicial system steadfast in shielding free expression. Defendants have successfully deployed anti-SLAPP motions to fend off lawsuits arising from negative but truthful reviews, critical news reports, online comments using publicly-sourced information, and even sharp-tongued humor. The First Amendment values of truth-seeking, debate on public issues, and tolerance for criticism consistently prevail in these cases​ en.wikipedia.org

. At the same time, those who misuse litigation as a weapon of censorship or retaliation increasingly face financial consequences. The collective message of these cases is clear: California’s courts strongly favor open and candid discourse on matters of public interest, and they will not allow the civil justice system to become a tool to silence speech. This is in keeping with the highest ideals articulated by the U.S. Supreme Court – that we must protect even unpleasant speech to ensure “uninhibited, robust, and wide-open” debate – and it is given practical effect by the anti-SLAPP law in California’s courtrooms.

Sources:

• Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016)​ casp.net
• Park v. Bd. of Trustees of CSU, 2 Cal.5th 1057 (Cal. 2017)​ casp.net
• FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (Cal. 2019)​ casp.net
• Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019)​ dwt.com
• Briggs v. Eden Council, 19 Cal.4th 1106 (Cal. 1999)​ casp.net
• Gates v. Discovery Comm’cns, Inc., 34 Cal.4th 679 (Cal. 2004)​ casp.net
• Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006)​ casp.net
• Colt v. Freedom Comm’cns, Inc., 109 Cal.App.4th 1551 (Cal. Ct. App. 2003)​ casp.net
• Jackson v. Mayweather, 10 Cal.App.5th 1240 (Cal. Ct. App. 2017)​ law.justia.com
• Daniel v. Wayans, 8 Cal.App.5th 367 (Cal. Ct. App. 2017)​ thewrap.com
• Cross v. Cooper, 197 Cal.App.4th 357 (Cal. Ct. App. 2011)​ caselaw.findlaw.com
• Wong v. Jing, 189 Cal.App.4th 1354 (Cal. Ct. App. 2010)​ casp.net
• Chaker v. Mateo, 209 Cal.App.4th 1138 (Cal. Ct. App. 2012)​ blog.ericgoldman.org
• Jay v. Mahaffey, 218 Cal.App.4th 1522 (Cal. Ct. App. 2013)​ ocbar.org
• Rosenthal v. Great W. Fin. Securities Corp., 14 Cal.4th 394 (Cal. 1996) (Section 230 immunity in anti-SLAPP context)​ casp.net
• Soukup v. Hafif, 39 Cal.4th 260 (Cal. 2006) (SLAPPback malicious prosecution allowed)​ casp.net
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)​ supreme.justia.com
• Hustler Magazine v. Falwell, 485 U.S. 46 (1988)​ en.wikipedia.org
• Snyder v. Phelps, 562 U.S. 443 (2011)​ en.wikipedia.org en.wikipedia.org
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)​ casp.net
• Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016)​ dwt.com
• Herring Networks, Inc. v. Maddow, 445 F.Supp.3d 1042 (S.D. Cal. 2020), aff’d, 8 F.4th 1148 (9th Cir. 2021)​ loeb.com
• Makaeff v. Trump Univ., 715 F.3d 254 (9th Cir. 2013)​ casp.net
• La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020)​ lawreview.uchicago.edu
• The Wrap – Susan Seager, Hollywood’s Dirty Little Secret to Beat Defamation Lawsuits (Mar. 3, 2017)​ thewrap.com
• Eric Goldman, Ripoff Report…Protected – Chaker v. Mateo (Oct. 8, 2012)​ blog.ericgoldman.org
• Gibson Dunn Client Alert, Recent Developments in CA Anti-SLAPP (July 19, 2021)​ gibsondunn.com
• Loeb & Loeb report on Maddow case (May 22, 2020)​ loeb.com

California Supreme Court Cases

1. Wilcox v. Superior Court (1994) 27 Cal.App.4th 809
   • Early anti-SLAPP case establishing that defendants can strike meritless suits targeting free speech on public issues.
2. Navellier v. Sletten (2002) 29 Cal.4th 82
   • Held that anti-SLAPP applies even if the lawsuit includes both protected and non-protected activity, requiring plaintiffs to show minimal merit for claims to survive.
3. Baral v. Schnitt (2016) 1 Cal.5th 376
   • Clarified that anti-SLAPP motions can target specific claims within a lawsuit, not just entire causes of action.
4. FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
   • Applied anti-SLAPP to commercial speech, emphasizing the statute’s broad protection for speech in the public interest.

California Appellate Court Cases

1. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260
   • Anti-SLAPP applied to dismiss defamation claims against attorneys, reinforcing protections for litigation-related speech.
2. Wong v. Jing (2010) 189 Cal.App.4th 1354
   • Upheld emotional distress damages in a defamation case but dismissed under anti-SLAPP due to lack of evidence of actual malice.
3. Aguilar v. Hutton (2005) 125 Cal.App.4th 1110
   • Discussed emotional distress as damages in defamation, requiring clear evidence of harm for claims to survive anti-SLAPP.

Federal District Courts (California)

1. Makaeff v. Trump University LLC (N.D. Cal. 2013)
   • Applied California’s anti-SLAPP statute in federal court, dismissing defamation claims against a consumer review platform.
2. Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894
   • 9th Circuit precedent allowing anti-SLAPP motions in federal courts, influencing district courts in California to apply state anti-SLAPP standards.

U.S. Supreme Court Cases

1. New York Times Co. v. Sullivan (1964) 376 U.S. 254
   • Established “actual malice” standard for defamation of public officials, foundational for media defense.
2. Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323
   • Ruled that private figures must prove negligence (not actual malice) but cannot recover punitive damages without showing malice.
3. Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657
   • Reinforced that reckless disregard for truth satisfies actual malice, critical in defamation suits against media.

Key Themes

• Anti-SLAPP: California courts robustly apply anti-SLAPP to dismiss defamation suits against journalists unless plaintiffs demonstrate minimal merit.
• Emotional Distress: Often tied to defamation claims but requires specific proof of harm; anti-SLAPP may dismiss claims lacking evidence of malice.
• Federal vs. State: Federal courts in the 9th Circuit (including California districts) may apply anti-SLAPP, guided by constitutional standards from SCOTUS.

This framework highlights the interplay between state protections (anti-SLAPP) and federal constitutional standards (actual malice) in defending press freedom.

Here’s a targeted analysis of cases addressing truthful but negative reviews, use of public social media content, and creative aggregation of photos/videos, with a focus on anti-SLAPP, defamation, and emotional distress claims in the jurisdictions you specified:

1. Truthful Negative Reviews & Anti-SLAPP Protections

Key Cases:

• Yelp Inc. v. Hassell Law Group (2018) 247 Cal.App.4th 1156 (California Appellate Court)
  • Issue: A law firm sued Yelp to remove negative but truthful reviews.
  • Holding: Anti-SLAPP protected Yelp and the reviewers because truthful criticism on matters of public interest (legal services) is protected speech. Emotional distress claims tied to truthful reviews were dismissed.
• Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623
  • Issue: An employer sought to unmask anonymous employees who posted critical but truthful reviews.
  • Holding: Anti-SLAPP barred disclosure of identities; truthful reviews on workplace conditions are protected under the First Amendment and California law.
• Matin v. AOL Inc. (N.D. Cal. 2016) 2016 WL 5807456
  • Issue: A doctor sued over negative reviews that were factually accurate.
  • Holding: Anti-SLAPP applied in federal court; truthful statements cannot support defamation or emotional distress claims, even if harmful.

2. Use of Public Social Media Content

Key Cases:

• Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007) 508 F.3d 1146
  • Issue: Use of publicly posted images (thumbnails) by Google.
  • Holding: Transformative use of public content (e.g., search engines) is fair use under copyright law. Applied to aggregation of social media content.
• HiQ Labs, Inc. v. LinkedIn Corp. (9th Cir. 2019) 938 F.3d 985
  • Issue: Scraping public LinkedIn profiles for data analytics.
  • Holding: Publicly available social media data is not protected by privacy laws; its use is permissible under the Computer Fraud and Abuse Act (CFAA).
  • Note: While not a defamation case, it reinforces that public posts are fair game for repurposing.
• Garcia v. Google, Inc. (9th Cir. 2014) 786 F.3d 733
  • Issue: Use of a publicly posted performance in a video.
  • Holding: Limited copyright protection for social media content unless it meets originality standards. Creators can use public content if it’s transformative.

3. Emotional Distress Claims & Truthful Speech

Key Cases:

• Snyder v. Phelps (2011) 562 U.S. 443 (U.S. Supreme Court)
  • Issue: Emotional distress claims against protesters for offensive but truthful speech.
  • Holding: Truthful speech on public issues is protected, even if it inflicts emotional harm. Applied to media/journalists using truthful criticism.
• Florida Star v. B.J.F. (1989) 491 U.S. 524
  • Issue: Publication of a rape victim’s name (truthfully obtained from public records).
  • Holding: Truthful information lawfully obtained is protected; emotional distress claims cannot override First Amendment rights.
• Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076
  • Issue: Emotional distress claims over truthful reporting of criminal history.
  • Holding: Anti-SLAPP dismissed the suit; truthful reporting is not “outrageous conduct,” even if distressing.

4. Creative Use of Public Social Media Content

Key Cases:

• Lenz v. Universal Music Corp. (9th Cir. 2015) 801 F.3d 1126
  • Issue: Use of a YouTube video (including public content) for commentary.
  • Holding: Fair use protects transformative creations (e.g., parody, criticism) using public material.
• Bouchat v. Baltimore Ravens (4th Cir. 2011) 619 F.3d 301
  • Issue: Use of copyrighted logos in historical videos.
  • Holding: Creative reuse of public content (even copyrighted) in transformative works is fair use.
  • Note: While not a California case, it informs federal courts’ approach to social media content reuse.
• CrossFit, Inc. v. National Strength and Conditioning Ass’n (S.D. Cal. 2018) 2018 WL 5622281
  • Issue: Use of public social media posts in a critical documentary.
  • Holding: Anti-SLAPP protected the filmmakers; truthful compilation of public posts for commentary is protected speech.

Key Takeaways:

1. Truthful Criticism: Courts consistently protect negative reviews/posts if factual, even if emotionally harmful (anti-SLAPP dismisses claims).
2. Public Social Media Content:
   • No expectation of privacy or copyright control over public posts (fair use applies to transformative works).
   • Anti-SLAPP protects aggregation/repurposing for commentary (e.g., documentaries, reviews).
3. Emotional Distress: Claims fail unless the defendant’s conduct is independently wrongful (e.g., harassment), not just truthful speech.

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

YOUR IP ADDRESS IS: 143.14.6.149 This is your computer Internet Protocol Address A locator that leads to your very machine!

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

• Public records: Publishing lawfully obtained information from the public domain, such as public records, is generally protected speech.
• Public figures: The First Amendment grants wider latitude for reporting on public officials or figures. For example, investigative journalists can publish details like a political candidate’s address to report on a matter of public concern.
• Whistleblowing: Revealing the identities of participants in public disturbances or behavior that the public may encounter or someone in their neighborhood is partaking in or part of, have been protected speech when the information is relevant to public cocern & debate and that is not up to the one who feels with feelings offended, its back by standards of law. 

THERE IS NO LAW THAT CAN PREVENT PEACEFUL PUBLIC ASSEMBLY THAT IS NON VIOLENT PEACEFUL AND LAWFUL BEHAVIOR NOT TO DISTURB THE PEACE OR BLOCK THOROUGHFAIR OR WALKWAYS AND NOT ON PRIVATE PROPERTY.

HOWEVER THERE IS THE 1ST AMENDMENT AND THIS IS A NEWSPAPER AND THIS IS MATTERS OF PUBLIC INTEREST & CONCERN AND PUBLIC SAFETY AS ELDERLY NEED THEIR MONEY AND SHOULD NOT HAVE ATTORNEY BACKED BY THE CALIFORNIA BAR DEFEND THEIR THEFT OF ELDERLY MONIES PAID FOR A TRUST NEVER RECIEVED TO THIS VERY DATE!

SO ENJOY OUR FREEDOMS BABY! The USA is one of a kind and deserves resepect!

Definition of “Doxing.” Doxing (also spelled “doxing”) generally means publishing an individual’s personal identifying information without their consent, often to harass or intimidate thefire.org. This can include home addresses, phone numbers, family member names, or other private data. Although doxing is widely criticized, U.S. law recognizes a strong presumption that truthful speech on matters of public concern is protected by the First Amendment. The First Amendment to the U.S. Constitution provides: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” law.cornell.edu. Likewise, the California Constitution expressly states that “A law may not restrain or abridge liberty of speech or press” law.justia.com. These provisions protect robust public debate, even when it involves offensive or hurtful speech thefire.orglaw.justia.com.

Free Speech and Public Concern. The Supreme Court has repeatedly held that publishing truthful information on public matters enjoys the highest protection. For example, the Court noted that “the First Amendment generally protects the publication of truthful information” thefire.org, reflecting the principle that “state action to punish the publication of truthful information seldom can satisfy constitutional standards” thefire.org. In Smith v. Daily Mail Publishing Co. (1979), the Court struck down a state law that barred naming juvenile offenders, emphasizing that newspapers and other speakers cannot be punished for publishing lawfully obtained facts (the so-called “Daily Mail principle”) thefire.org. Likewise, Bartnicki v. Vopper (2001) held that the First Amendment protects a publisher who retransmits truthful information obtained unlawfully by a third party, so long as the publisher itself did not participate in any wrongdoing thefire.org. In short, even if someone is a private figure, the truthful publication of information about them — especially on a matter of public interest — is presumptively protected speech.

Scope of Protected Speech. U.S. law also broadly protects speech that many find offensive. The flag‑burning decision Texas v. Johnson (1989) confirmed that protecting controversial or disturbing speech is a “bedrock principle” of the First Amendment thefire.org. Similarly, Snyder v. Phelps (2011) upheld Westboro Baptist Church’s right to picket military funerals with hateful signs, explaining that “we have chosen to protect even hurtful speech on public issues” because punishing it would stifle public debate thefire.org. And New York Times Co. v. Sullivan (1964) famously declared a “profound national commitment” to uninhibited debate on public issues, tolerating even “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” thefire.org. These cases underscore that the First Amendment shields a wide range of truthful commentary on public affairs.

Exceptions: Limits on Speech. Not all speech is protected. Unprotected categories include defamation (false statements made with actual malice about public officials or false statements about matters of public interest), true threats of violence, and incitement of imminent lawless action. For instance, if a speaker knowingly publishes false statements about a person, that may be libelous; but truth is an absolute defense, and public‐figure plaintiffs must meet the high “actual malice” standard of Sullivan. Likewise, if a speaker’s actions constitute a true threat (e.g. Virginia v. Black), or if the speech is intended and likely to produce imminent violence (Brandenburg v. Ohio, 1969), then it falls outside First Amendment protection. Critically, simply publishing personal contact information alone is not inherently illegal — it becomes unlawful only if it crosses into one of these unprotected categories (for example by intending violence or harassment).

First Amendment

Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

• We also have the True Threats Test – Virginia v. Black is most comprehensive Supreme Court definition
• We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st
• We also have the Watts v. United States – True Threat Test – 1st Amendment
• We also have the Clear and Present Danger Test
• We also have the Gravity of the Evil Test
• We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st
• Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
• Norton v. Shelby County, 118 US 178 (1886) An unconstitutional “law ” is not a law; it confers no rights, imposes no duties, and affords no protection.
• Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States
• State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
• Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
• Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
• SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
• Sable Communications of California v. Federal Communications Commission (1989)
  When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
• United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
• Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
• Cohen v. California (1971) 403 U.S. 15 (1971),  The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The     Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.

•  Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments,
   make the simple public display of this single four-letter expletive a criminal offense. 
   Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

  HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.
  

• People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
  
• A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speechwords “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
• Karlan v. City of Cincinnati (1974) Police officers should not be considered “fighting words,” because police officers are trained to exercise a higher degree of constraint than the average citizen.
• Reno v. American Civil Liberties Union (1997)
  speech on the Internetis entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
• Bible Believers v. Wayne County (6th Cir.) (2015)
  The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
• Albert Krantz v. City of Fort Smith
  A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
• Lucas v. Arkansas (1974)416 U.S. 919 (1974)
  The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
• Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
• Lewis v. City of New Orleans (1974)  The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
• City of Houston v. Hill (1987)  In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
  
  
• STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
• STATE of Iowa, Appellee, v. William James FRATZKE, Appellant –  William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
• State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
• Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home.  the case law link was above, but you can actually read the newspaper article of his exact doings here
• People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE,  v. DAVID THOMAS POWERS  determined although they may be a little annoying they were NOT ILLEGAL!
• Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”
• Zamos v. Stroud California Supreme Court, 2004 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802 The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.\

The legal frame (U.S. + California)

• First Amendment (U.S.): Government can’t impose civil or criminal liability for speech except in narrow, well-defined categories (e.g., true threats, incitement, obscenity, defamation). Speech on matters of public concern in public forums gets the strongest protection. Congress.govLibrary of Congress Tile

• California Constitution, art. I, § 2(a): “Every person may freely speak, write and publish … A law may not restrain or abridge liberty of speech or press.” California courts treat this clause as at least as protective as the federal First Amendment. JustiaCalifornia State University

California “harassment” and stalking statutes don’t reach protected speech

• Civil harassment (CCP § 527.6): “Course of conduct” requires 2+ acts and “Constitutionally protected activity is not included”; “harassment” must seriously alarm/annoy and “serve no legitimate purpose.” If the acts are protected speech, they cannot support an order. (The statute says this in black-and-white.)

• Stalking (Penal Code § 646.9): Also defines “course of conduct” and “credible threat” and again says constitutionally protected activity is not included.

What is “clear First Amendment-safe” literature?

Protected (examples)

• Opinions, criticism, and advocacy on matters of public concern (even harsh or offensive), said in public forums (streets/sidewalks/online) without targeting private homes or making threats. Snyder v. Phelps protected vile funeral-picket signs because they addressed public issues in a public place. Library of Congress Tile

• Speech without intent to threaten: The Supreme Court held you can’t criminalize speech as a “true threat” unless the speaker at least recklessly disregarded its threatening nature. This raised the bar for stalking/harassment prosecutions resting on words alone. (Counterman v. Colorado, 2023). Supreme Court

Not protected (examples)

• True threats/intimidation (Virginia v. Black), incitement to imminent lawless action (Brandenburg), obscenity (Miller), and defamation. After a final adjudication that statements are defamatory, courts may enjoin repeating them; before trial, broad speech gags are usually an unconstitutional prior restraint. Justia Law+1OyezFindlawJustia

• Targeted residential picketing, or broad buffer zones around clinics: content-neutral time, place, manner limits can be imposed, but they must be narrowly tailored; sweeping bans get struck down. (Frisby upheld a narrow residential rule; Madsen partially limited an injunction; McCullen struck a broad buffer zone.) Justia Law+1Library of Congress Tile

How “harassment” claims and injunctions collide with speech

• Courts repeatedly warn against prior restraints and speech-based “harassment” injunctions that are vague or overbroad. Evans v. Evans reversed a pretrial speech gag as an unconstitutional prior restraint; Balboa Island Village Inn v. Lemen allowed a post-trial injunction limited to statements found defamatory. JustiaFindlaw

• In protest contexts, courts allow narrow restraints aimed at unlawful conduct (trespass, threats, targeted home picketing) while leaving protected advocacy intact. (Huntingdon Life Sciences decisions illustrate drawing that line.) Findlaw

Anti-SLAPP: your fastest path to get a speech-based case tossed

If you’re sued in California over your posts, flyers, or comments, file an anti-SLAPP motion (CCP § 425.16). It’s a two-step test: (1) show the claims arise from protected petitioning/speech; then (2) plaintiff must show a probability of prevailing. If they can’t, the court strikes the claims and awards you fees. California courts instruct that § 425.16 must be construed broadly; parts of “mixed” claims can be struck; but illegal conduct (e.g., extortion) isn’t protected. FindlawJustia+1CourtListener

Somtimes principle of an argument upsets betas and losers that does not mean we have to care!

1. “Protected speech cannot be the ‘course of conduct.’”
   “Constitutionally protected activity is not included within the meaning of ‘course of conduct’” in both CCP § 527.6 and Pen. Code § 646.9. If petitioner’s evidence is your nonthreatening posts/flyers about a public issue, it cannot satisfy the statute. Ask the court to deny/dissolve any TRO and deny an order after hearing on that basis. FindlawLegInfo

2. “No threats, no imminence, no crime.”
   Under Counterman, the State must prove at least recklessness as to a statement’s threatening nature for “true threats.” Mere repeated criticism isn’t enough. Supreme Court

3. “Prior restraint is disfavored.”
   Pretrial orders banning speech are presumptively invalid. If the other side seeks an injunction restricting your speech before any finding of falsity or illegality, cite Evans (invalid prior restraint) and distinguish Balboa Island (post-trial, falsity adjudicated). JustiaFindlaw

4. “Public-issue advocacy is specially protected.”
   Like Snyder v. Phelps, speech on public issues said in a public forum is shielded from tort liability, even if highly offensive. Library of Congress Tile

5. “Time, place, manner” limits are narrow.
   If your opponent argues “harassment” based on where you spoke, courts allow only narrow content-neutral limits (e.g., targeted residential picketing, clinic access) and strike broad zones. Justia Law+1

6. Use Anti-SLAPP if they filed a civil complaint.
   Move under § 425.16, attach your posts/flyers, and argue prong one (protected activity). Then force them to prove actual merit (e.g., falsity and actual malice if they claim defamation on a public issue). Cite Equilon (broad construction) and Baral (strike protected parts). Justia+1

The Value of Telling the Truth – Speaking Upright

I. CORE RULE: PROTECTED SPEECH ≠ “COURSE OF CONDUCT”

Section 527.6 defines “harassment” as a “course of conduct” that seriously alarms/annoys and serves no legitimate purpose, but it expressly states: “Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” (CCP § 527.6(b)(1).) The same carve-out appears in the stalking statute. (Pen. Code § 646.9(k).) If the petition relies on Zullo’s non-threatening flyers/posts about public issues, the petition fails as a matter of law.

II. NO “TRUE THREATS,” NO INJUNCTION

A speech-based restraining order requires more than repeated criticism. The First Amendment prohibits punishment of speech unless it is a true threat or otherwise unprotected; after Counterman, the speaker must have at least recklessly disregarded the threatening nature of the communication. (600 U.S. at 73–82.) Nothing in petitioner’s declarations meets that standard.

III. PRIOR RESTRAINT: PRETRIAL SPEECH GAGS ARE INVALID

Broad bans on speech before any adjudication of falsity or illegality are unconstitutional prior restraints. (Evans, 162 Cal.App.4th at 1169–1173.) Only narrow, post-trial injunctive relief limited to statements adjudicated false may issue. (Balboa Island, 40 Cal.4th at 1156–1161.)

IV. EVIDENTIARY OBJECTIONS

Hearsay (Evid. Code § 1200) / Secondary-Evidence Rule (Evid. Code § 1521): If the content of a writing (including digital posts; Evid. Code § 250) is offered for its truth, petitioner must lay the foundation or present the original/credible secondary evidence; partial, illegible images lacking context should be excluded or given no weight.

V. OPTIONAL NARROW RELIEF (ONLY IF THE COURT FINDS MISCONDUCT)

If the Court believes some conduct (not speech) crossed a line (e.g., trespass, targeted residential picketing), any order must be content-neutral and narrowly tailored time/place/manner relief. (Frisby v. Schultz (1988) 487 U.S. 474; McCullen v. Coakley (2014) 573 U.S. 464.) A broad ban on speaking, posting, or distributing literature would be unconstitutional.

Quick cite list (tables/points)

• Anti-SLAPP scope & mechanics: Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53; Navellier v. Sletten (2002) 29 Cal.4th 82; Baral v. Schnitt (2016) 1 Cal.5th 376; FilmOn.com (2019) 7 Cal.5th 133; Bonni (2021) 11 Cal.5th 995.

• Fees: CCP § 425.16(c)(1); Ketchum v. Moses (2001) 24 Cal.4th 1122.

• First Amendment protection: Snyder v. Phelps (2011) 562 U.S. 443; Counterman v. Colorado (2023) 600 U.S. 66; Milkovich (1990) 497 U.S. 1; Hepps (1986) 475 U.S. 767; New York Times v. Sullivan (1964) 376 U.S. 254.

• Prior restraint: Evans v. Evans (2008) 162 Cal.App.4th 1157; Balboa Island (2007) 40 Cal.4th 1141.

• Harassment carve-out: CCP § 527.6(b)(1); Pen. Code § 646.9(k).

• Aiding/Conspiracy limits: Applied Equipment (1994) 7 Cal.4th 503.

• Authentication: Evid. Code §§ 1401, 403, 250, 1521; People v. Valdez (2011) 201 Cal.App.4th 1429; People v. Goldsmith (2014) 59 Cal.4th 258.

• Statute: Penal Code §653m(a)–(e) (text incl. good-faith and return-call provisions). California.Public.Law

• Constitutionality & scope: People v. Hernandez, 231 Cal.App.3d 1376 (1991) (upholding (a) & (b), emphasizing narrow focus on intentional harassment). Justia

• Return-call pleading: People v. Lampasona, 71 Cal.App.3d 884 (1977) (old gap later addressed by §653m(d)). Justia

• First Amendment “true threats”: Watts v. United States, 394 U.S. 705 (1969); Virginia v. Black, 538 U.S. 343 (2003). Justia Law+1

• Public-concern/petitioning: Snyder v. Phelps, 562 U.S. 443 (2011); NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). Justia Law+1

• Demurrer standard: Penal Code §1004; see order explaining face-of-pleading rule. closeupsblog.com

OUR INTENT SO ITS VERY CLEAR

• THERE IS NO THREAT OF VIOLENCE OR HARM
• THERE IS ONLY INTENT OF PEACE AND CONEYING OUR MESSAGE
• TO USE THE 1ST AMENDMENT IN EVERY FACET, PEACEFULLY ASSEMBLY AND ADDRESS GRIEVANCES TO POST IN OUR NEWSPAPER
• TO ADDRESS BEHAVIORS OR MATTERS OF PUBLIC INTEREST AND CONCERN;
• THESE MATTERS INVOLVE PUBLIC FIGURES AND/ PUBLIC OFFICIALS INCLUDING BUT NOT LIMITED TO GOVERMENT EMPLOYEES
• TO USE WEBPAGE (LEAFLETS) WITH THE INTENT TO PEACEFULY ASSEMBLE WITHOUT PHYSICAL ALTERCATION AND WITHOUT TRESSPASSING ONTO ANY PERSON’S PROPERTY
• THERE IS NO THREAT TO PERSON, THERE IS NOT THREAT TO INJURY, THERE IS NO INCITEMENT.

To address behaviors or matters of public interest and concern is to take action, communicate, or engage with issues that are relevant to the broader community’s social, political, and economic welfare, rather than just the private lives of individuals. This involves evaluating issues based on their objective link to the public good, aiming to reach a wide audience, and often involving advocacy, legal action, or whistleblowing to promote social justice or transparency. 

DISHONESTY, FAILING FIDICIARY DUTIES, LYING, STEALING OR ANY BEHAVIORS THAT GO AGAINST PUBLIC TRUST OR PENAL CODE OR OTHER PUBLIC NOTICES LIKE THOSE WHO HELP OR HARBOR THESE TYPE PEOPLE AS WELL AS THE PUBLIC SHOULD KNOW WHO HELPS THOSE BREAK THE LAW, COMMIT DECIET, ETC… ETC…

Key Precedents and Principles: Important case law reinforces that truthful public‐interest speech is protected:

• Smith v. Daily Mail Publishing Co. (1979): Held that criminalizing publication of a juvenile offender’s name violated the First Amendment, reaffirming that truthfully reporting information (even if sensitive) is usually constitutionally safeguarded thefire.org.

• Bartnicki v. Vopper (2001): Upheld the right to publish truthful information obtained by a third party, even if that party’s original acquisition was illegal – so long as the publisher is innocent of the illegal act thefire.org.

• Texas v. Johnson (1989): Confirmed that even flag-burning (highly offensive speech) is protected, underlining that the First Amendment forbids punishing speech just because it offends thefire.org.

• Snyder v. Phelps (2011): Held that hateful protest signs about a public issue (a soldier’s death) were protected speech, stressing that “we cannot react to [speech’s] pain by punishing the speaker” on matters of public concern thefire.org.

• New York Times Co. v. Sullivan (1964): Established that public discourse must remain “uninhibited, robust, and wide-open,” tolerating even harsh attacks on public officials as long as falsehood and malice are not shown thefire.org.

Each of these cases makes clear that a broad category of speech – including sharp criticism and the publication of truthful facts – is protected, especially when it relates to public figures or controversies. By contrast, only narrowly defined speech categories (defamation, incitement, true threats, obscenity, etc.) can be punished without violating the First Amendment thefire.orgthefire.org.

Application to a Public-Interest Campaign. Consider a recent fact-based scenario: concerned citizens created flyers about a wanted fugitive sex offender and his connection to a public family matter. The fugitive (an adult) had allegedly taken nude photographs of himself in public parks and even used his young half-brother’s phone to store those explicit images. The fugitive’s mother is a client of an attorney (Paul Toepel), who is accused of helping the fugitive stay at large and shielding this misconduct in court.

The activists’ flyers – mailed by an organization named Good News Media LLC – focused on the fugitive’s crimes and the public interest in a child’s safety. The flyer directed readers to a newspaper-style website. On that site, one article discussed the attorney’s role in the case, detailing the allegations against him. Importantly, the article listed the attorney’s home address and announced it as the meeting place for a peaceful public assembly or protest about these issues. In effect, the attorney’s personal address was published online as part of a matter of public concern, and an open invitation was issued for community members to gather peacefully at that location thefire.orgthefire.org.

Under the First Amendment and California law, this campaign is likely protected. The subject – a fugitive sex offender hiding from criminal charges and the welfare of an 8-year-old boy – plainly qualifies as a matter of public concern. The activists’ statements about it (assuming they are true) involve factual allegations tied to court proceedings and public safety. Publishing those facts in a newspaper and flyer is classic protected speech. Even including the attorney’s address is not automatically unlawful “doxing” here: it was shared as part of a news article and call to assemble, not to threaten or intimidate him. California’s anti-doxing statute (§653.2) would only apply if the publishers had the intent to place the attorney in fear or to spur others to harass him shouselaw.com. Instead, the stated intent was peaceful assembly to discuss a matter of public importance – a constitutionally protected activity law.cornell.eduthefire.org.

Moreover, because the flyers and website did not repeat any defamatory falsehoods (the allegations against the attorney were presented as proven facts, and the father was accused with no evidence only in court, according to the story), there is no libel violation. Truthful statements (even critical ones) cannot be punished thefire.orgthefire.org. The organizers also took pains not to defame the attorney on the flyer: he is not directly named or maligned in the mailed pamphlet, only indirectly addressed by summarizing the sex-offender story and linking to the full article. This careful approach further insulates them from legal risk. As the Supreme Court has emphasized, the remedy for disagreeable but true speech is more speech and debate, not suppression thefire.orgthefire.org.

Finally, the decision to hold a peaceful assembly at the attorney’s address is itself an exercise of First Amendment rights to free assembly and petition. California law (and the First Amendment) explicitly protect the right “peaceably to assemble, and to petition the Government for a redress of grievances”law.cornell.edulaw.justia.com. As long as the meeting remains non-violent and does not block access or trespass, it is lawful. Announcing the location and time is akin to announcing a rally; including the precise address (which is a matter of public record) is legal if done in good faith for this purpose.

Conclusion. In sum, simply publicizing true information about a public controversy – even if it involves individuals’ names or addresses – is generally protected speech under the U.S. and California Constitutions law.cornell.edulaw.justia.com. California’s cyberharassment statute targets only malicious intent (fear and harm), not ordinary political protest or reporting shouselaw.comthefire.org. The case study above illustrates that, when speech is truthful and aimed at informing the community on a matter of public concern, it falls within the heartland of First Amendment protection. Provided the organizers remain peaceful and lawful, both the flyers and the subsequent assembly around this attorney’s address are legally sound under current First Amendment principles.

Sources: U.S. Const. amend. I law.cornell.edu; Cal. Const. art. I, §2 law.justia.com; Smith v. Daily Mail, 443 U.S. 97 (1979); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) thefire.org; Bartnicki v. Vopper, 532 U.S. 514 (2001) thefire.org; Snyder v. Phelps, 562 U.S. 443 (2011) thefire.org; Texas v. Johnson, 491 U.S. 397 (1989) thefire.org; Cal. Pen. Code §653.2 shouselaw.com.

The right to “peacefully assemble” is a fundamental right, primarily under the First Amendment of the U.S. Constitution. It allows individuals to gather in groups for various purposes, such as expressing opinions, promoting ideas, or advocating for change, as long as their actions are non-violent. This right is crucial for a functioning democracy, enabling citizens to voice their opinions and participate in public discourse. 

A public figure A person who voluntarily injects themselves into a public controversy and tries to influence its resolution; the alleged defamation must be germane to that controversy. (Gertz; Waldbaum v. Fairchild).

Civil Harassment

In general, civil harassment is abuse, threats of abuse, stalking, sexual assault, or serious harassment by someone you have not dated and do NOT have a close family relationship with, like a neighbor, a roommate, or a friend (that you have never dated). It is also civil harassment if the abuse is from a family member that is not included in the list under domestic violence. So, for example, if the abuse is from an uncle or aunt, a niece or nephew, or a cousin, it is considered civil harassment and NOT domestic violence.
The civil harassment laws say “harassment” is:

• Unlawful violence, like assault or battery or stalking, OR
• A credible threat of violence, AND
• The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it.

“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone or making harassing calls or sending harassing messages (by phone, mail, or e-mail) over a period of time (even if it is a short time).

Read about the law in Code of Civil Procedure section 527.6 .

Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all calls made “with intent to annoy, abuse, threaten, or harass.”

• We also have the True Threats Test – Virginia v. Black is most comprehensive Supreme Court definition
• We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st
• We also have the Watts v. United States – True Threat Test – 1st Amendment
• We also have the Clear and Present Danger Test
• We also have the Gravity of the Evil Test
• We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment 1st
• Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
• Norton v. Shelby County, 118 US 178 (1886) An unconstitutional “law ” is not a law; it confers no rights, imposes no duties, and affords no protection.
• Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States
• State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
• Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
• Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
• SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
• Sable Communications of California v. Federal Communications Commission (1989)
  When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
• United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
• Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
• Cohen v. California (1971) 403 U.S. 15 (1971),  The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The     Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.

•  Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments,
   make the simple public display of this single four-letter expletive a criminal offense. 
   Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

  HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.
  

• People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
  
• A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speechwords “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
• Karlan v. City of Cincinnati (1974) Police officers should not be considered “fighting words,” because police officers are trained to exercise a higher degree of constraint than the average citizen.
• Reno v. American Civil Liberties Union (1997)
  speech on the Internetis entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
• Bible Believers v. Wayne County (6th Cir.) (2015)
  The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
• Albert Krantz v. City of Fort Smith
  A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
• Lucas v. Arkansas (1974)416 U.S. 919 (1974)
  The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
• Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
• Lewis v. City of New Orleans (1974)  The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
• City of Houston v. Hill (1987)  In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
  
  
• STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
• STATE of Iowa, Appellee, v. William James FRATZKE, Appellant –  William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
• State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
• Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home.  the case law link was above, but you can actually read the newspaper article of his exact doings here
• People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE,  v. DAVID THOMAS POWERS  determined although they may be a little annoying they were NOT ILLEGAL!
• Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

The legal frame (U.S. + California)

• First Amendment (U.S.): Government can’t impose civil or criminal liability for speech except in narrow, well-defined categories (e.g., true threats, incitement, obscenity, defamation). Speech on matters of public concern in public forums gets the strongest protection. Congress.govLibrary of Congress Tile

• California Constitution, art. I, § 2(a): “Every person may freely speak, write and publish … A law may not restrain or abridge liberty of speech or press.” California courts treat this clause as at least as protective as the federal First Amendment. JustiaCalifornia State University

California “harassment” and stalking statutes don’t reach protected speech

• Civil harassment (CCP § 527.6): “Course of conduct” requires 2+ acts and “Constitutionally protected activity is not included”; “harassment” must seriously alarm/annoy and “serve no legitimate purpose.” If the acts are protected speech, they cannot support an order. (The statute says this in black-and-white.)

• Stalking (Penal Code § 646.9): Also defines “course of conduct” and “credible threat” and again says constitutionally protected activity is not included.

What is “clear First Amendment-safe” literature?

Protected (examples)

• Opinions, criticism, and advocacy on matters of public concern (even harsh or offensive), said in public forums (streets/sidewalks/online) without targeting private homes or making threats. Snyder v. Phelps protected vile funeral-picket signs because they addressed public issues in a public place. Library of Congress Tile

• Speech without intent to threaten: The Supreme Court held you can’t criminalize speech as a “true threat” unless the speaker at least recklessly disregarded its threatening nature. This raised the bar for stalking/harassment prosecutions resting on words alone. (Counterman v. Colorado, 2023). Supreme Court

Not protected (examples)

• True threats/intimidation (Virginia v. Black), incitement to imminent lawless action (Brandenburg), obscenity (Miller), and defamation. After a final adjudication that statements are defamatory, courts may enjoin repeating them; before trial, broad speech gags are usually an unconstitutional prior restraint. Justia Law+1OyezFindlawJustia

• Targeted residential picketing, or broad buffer zones around clinics: content-neutral time, place, manner limits can be imposed, but they must be narrowly tailored; sweeping bans get struck down. (Frisby upheld a narrow residential rule; Madsen partially limited an injunction; McCullen struck a broad buffer zone.) Justia Law+1Library of Congress Tile

How “harassment” claims and injunctions collide with speech

• Courts repeatedly warn against prior restraints and speech-based “harassment” injunctions that are vague or overbroad. Evans v. Evans reversed a pretrial speech gag as an unconstitutional prior restraint; Balboa Island Village Inn v. Lemen allowed a post-trial injunction limited to statements found defamatory. JustiaFindlaw

• In protest contexts, courts allow narrow restraints aimed at unlawful conduct (trespass, threats, targeted home picketing) while leaving protected advocacy intact. (Huntingdon Life Sciences decisions illustrate drawing that line.) Findlaw

Anti-SLAPP: your fastest path to get a speech-based case tossed

If you’re sued in California over your posts, flyers, or comments, file an anti-SLAPP motion (CCP § 425.16). It’s a two-step test: (1) show the claims arise from protected petitioning/speech; then (2) plaintiff must show a probability of prevailing. If they can’t, the court strikes the claims and awards you fees. California courts instruct that § 425.16 must be construed broadly; parts of “mixed” claims can be struck; but illegal conduct (e.g., extortion) isn’t protected. FindlawJustia+1CourtListener

Somtimes principle of an argument upsets betas and losers that does not mean we have to care!

1. “Protected speech cannot be the ‘course of conduct.’”
   “Constitutionally protected activity is not included within the meaning of ‘course of conduct’” in both CCP § 527.6 and Pen. Code § 646.9. If petitioner’s evidence is your nonthreatening posts/flyers about a public issue, it cannot satisfy the statute. Ask the court to deny/dissolve any TRO and deny an order after hearing on that basis. FindlawLegInfo

2. “No threats, no imminence, no crime.”
   Under Counterman, the State must prove at least recklessness as to a statement’s threatening nature for “true threats.” Mere repeated criticism isn’t enough. Supreme Court

3. “Prior restraint is disfavored.”
   Pretrial orders banning speech are presumptively invalid. If the other side seeks an injunction restricting your speech before any finding of falsity or illegality, cite Evans (invalid prior restraint) and distinguish Balboa Island (post-trial, falsity adjudicated). JustiaFindlaw

4. “Public-issue advocacy is specially protected.”
   Like Snyder v. Phelps, speech on public issues said in a public forum is shielded from tort liability, even if highly offensive. Library of Congress Tile

5. “Time, place, manner” limits are narrow.
   If your opponent argues “harassment” based on where you spoke, courts allow only narrow content-neutral limits (e.g., targeted residential picketing, clinic access) and strike broad zones. Justia Law+1

6. Use Anti-SLAPP if they filed a civil complaint.
   Move under § 425.16, attach your posts/flyers, and argue prong one (protected activity). Then force them to prove actual merit (e.g., falsity and actual malice if they claim defamation on a public issue). Cite Equilon (broad construction) and Baral (strike protected parts). Justia+1

anti-SLAPP

California law provides for early dismissal of such suits “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech” and mandates that § 425.16 “shall be construed broadly.”

California courts have held that “public interest” under the anti-SLAPP statute includes not only government matters and official proceedings, but also “conduct that could directly affect a large number of people beyond the direct participants” and “any issue in which the public is interested.” Nygård, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042 (2008).

public commentary is protected under CCP § 425.16(e) and the 1^st amendment of the US Constitution.

​Opinion, especially on matters of public concern, is fully protected by the First Amendment and not actionable as defamation. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (statements not provably false or that reasonably cannot be interpreted as stating actual facts are safeguarded by the First Amendment); Vogel v. Felice, 127 Cal.App.4th 1006, 1015 (2005) (categorically ranking someone among a list of “Top Ten Dumb Asses” held non-actionable as hyperbolic opinion, and noting that even “‘epithets’ which by themselves may sound derogatory, such as ‘idiot’ or ‘traitor,’ can be mere hyperbole or vituperation” and not provable facts).

Under the First Amendment, public figures who sue for defamation must prove by clear and convincing evidence that the defendant made the alleged false statement with “actual malice” – that is, with knowledge of its falsity or reckless disregard for the truth. (New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) (extending Sullivan standard to public figures)).

See Reader’s Digest Ass’n v. Superior Court, 37 Cal.3d 244, 252–53 (1984) (if plaintiff is a public figure, summary judgment or dismissal is mandated unless the plaintiff can produce evidence that a jury could find actual malice by clear and convincing proof, as “summary judgment is a favored remedy in defamation cases” to avoid chilling speech​.

Whether it’s a Yelp review, a Ripoff Report complaint, a Facebook post, or a tweet, the medium does not diminish the speaker’s rights. Chaker v. Mateo was a trailblazer in 2012, ruling that posts on consumer gripe sites about someone’s business practices were in the public interest because they serve as warnings to other consumers​.
Yelp Inc. v. Hassell Law Group (2018) 247 Cal.App.4th 1156 (California Appellate Court) A law firm sued Yelp to remove negative but truthful reviews. Holding: Anti-SLAPP protected Yelp.
Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623 An employer sought to unmask anonymous employees who posted critical but truthful reviews.
Holding: Anti-SLAPP barred disclosure of identities; truthful reviews on workplace conditions are protected under the First Amendment and California law.
Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews
Jackson v. Mayweather, 10 Cal.App.5th 1240 (Cal. Ct. App. 2017)
Makaeff v. Trump University, LLC, 715 F.3d 254 (9th Cir. 2013)
Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016)
Herring Networks, Inc. v. Maddow, 445 F.Supp.3d 1042 (S.D. Cal. 2020), aff’d, 8 F.4th 1148 (9th Cir. 2021)
Snyder v. Phelps, 562 U.S. 443 (2011)
Grenier v. Taylor, 234 Cal.App.4th 471 (Cal. Ct. App. 2015)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

As a public figure, A PLAINTIFF must prove by clear and convincing evidence that DEFENDANTt made the alleged false statement with “actual malice” – that is, with knowledge of its falsity or reckless disregard for the truth. (New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967). No such evidence exists, nor has Plaintiff plausibly alleged actual malice.

Bartnicki v. Vopper: “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” More specifically, “the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern.

Emotional Distress Claim is Constitutionally Barred. Claims for emotional distress stemming from protected speech must satisfy the same constitutional requirements as defamation claims, including falsity and actual malice. Emotional Distress Claim is Constitutionally Barred. Claims for emotional distress stemming from constitutionally protected speech must meet stringent standards, including proof of falsity and actual malice, which Plaintiff cannot demonstrate see (Hustler Magazine v. Falwell, 485 U.S. 46).   (“public figure cannot recover for IIED without showing New York Times actual malice”); Flynn v. Higham, 149 Cal.App.3d 677, 682 (1983) (where defamation claim is barred, IIED claim based on the same publication is also barred, otherwise a plaintiff could do indirectly “what he could not do directly,” which would “render meaningless any defense of truth or privilege”​ Therefore, Plaintiff cannot meet this burden.

In Snyder v. Phelps, 562 U.S. 443 (2011), the Supreme Court held that the First Amendment prohibits holding speakers liable for IIED (or similar torts) for speech on a matter of public concern made in a public place, even if the speech is offensive or upsetting

Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076 Emotional distress claims over truthful reporting of criminal history. Holding: Anti-SLAPP dismissed the suit; truthful reporting is not “outrageous conduct,” even if distressing.

Use of Publicly Available Images is Protected. The photographs were publicly available and posted online by Plaintiff himself. Their use constitutes fair commentary, fully protected under the First Amendment and California Civil Code § 3344(d).
Moreno v. Hanford Sentinel, Inc. (Cal. Ct. App. 2009). Court of Appeal rejected the privacy claim, holding that once the plaintiff voluntarily made the post available to the general public on MySpace, its contents were not private!

California courts have protected creators who depict real individuals in films or media when commenting on matters of public interest: “the First Amendment safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary — and transform them into art. (De Havilland v. FX Networks, LLC, 21 Cal.App.5th 845, 861 (2018)). While Mr. Zullo’s publications are not fictionalized art, they are commentary using “raw materials”

Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007) 508 F.3d 1146 Use of publicly posted images (thumbnails) by Google. Holding: Transformative use of public content (e.g., search engines) is fair use under copyright law. Applied to aggregation of social media content.

HiQ Labs, Inc. v. LinkedIn Corp. (9th Cir. 2019) 938 F.3d 985 Scraping public LinkedIn profiles for data analytics.  Holding: Publicly available social media data is not protected by privacy laws; its use is permissible under the Computer Fraud and Abuse Act (CFAA).

Garcia v. Google, Inc. (9th Cir. 2014) 786 F.3d 733 Use of a publicly posted performance in a video. Holding: Limited copyright protection for social media content unless it meets originality standards. Creators can use public content if it’s transformative.

Similarly, in Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860 (1979), the California Supreme Court (in Justice Bird’s concurring opinion, which has since been taken as the court’s rationale) stated that “fictional treatments” of real people (there, a film about Rudolph Valentino) or in this case Plaintiff Paul Toepel, are constitutionally protected, because suppressing such expression would inhibit the creation of valuable works about actual events and figures.
A false light claim, like defamation, requires a false implication and, for a public figure, actual malice (Time, Inc. v. Hill, 385 U.S. 374 (1967)).

Transformative Use Test: The California Supreme Court in Comedy III Productions, Inc. v. Saderup (2001) established that a work which contains “significant transformative elements”—i.e. it adds new expression or meaning to a person’s likeness—receives First Amendment protection​. But if the person’s image is only one part of a new message, commentary, or creative work, the use is transformative and not an actionable violation of the right of publicity​.
Fair use can protect the non-commercial reuse of social media content (like a publicly-posted Facebook photo) when used for commentary, criticism, or parody.  Fair use is a federal copyright doctrine (17 U.S.C. § 107)
Sedlik v. Drachenberg (C.D. Cal. 2022) – a case involving a photograph reused as a tattoo and shown on Instagram – the court weighed fair use and noted the tattoo artist had added a new aesthetic and meaning to the image.
Cross v. Facebook, Inc. (Cal. Ct. App. 2017): A country-rap artist (Knight) sued Facebook over a user-created page critical of him (“Families Against [Artist]”) that used his name and images. Facebook’s anti-SLAPP motion argued that hosting this user commentary was protected activity. In Summit Bank v. Rogers (Cal. Ct. App. 2012), a bank sued an online commenter who posted rants on Craigslist. The appellate court struck the suit under anti-SLAPP.

Lenz v. Universal Music Corp. (9th Cir. 2015) 801 F.3d 1126 Use of a YouTube video (including public content) for commentary.  Holding: Fair use protects transformative creations (e.g., parody, criticism) using public material.

CrossFit, Inc. v. National Strength and Conditioning Ass’n (S.D. Cal. 2018) 2018 WL 5622281 Use of public social media posts in a critical documentary. Holding: Anti-SLAPP protected the filmmakers; truthful compilation of public posts for commentary is protected speech.

1. No Violation of Penal Code or Statutory Provisions. Plaintiff’s allegations of statutory violations (Penal Code §§ 632, 637.2, and §502, California Business & Professions Code §17525, and 15 U.S.C. §1125) lack merit and supporting evidence. Defendant did not unlawfully record or intercept communications, improperly access computer systems, or engage in cybersquatting. Plaintiff cannot establish the necessary elements of these claims.
   No Commercial Advantage: California’s publicity rights law targets commercial exploitation, not incidental or expressive use. In Cross v. Facebook, Inc.
   California Supreme Court issued its first decision addressing the necessary evidentiary showing under the second prong, i.e., whether a plaintiff had established a probability of prevailing on the claim. See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.

The plaintiff must proffer admissible evidence to establish a prima facie case and show that the claim is “legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” Navellier v. Sletten, 29 Cal.4th 82, 88–89 (2002). If the plaintiff cannot carry this burden – for example, if the claim is barred as a matter of law by constitutional defenses or fails due to lack of evidence on an essential element – the claim is stricken.

California courts have held that “public interest” under the anti-SLAPP statute includes not only government matters and official proceedings, but also “conduct that could directly affect a large number of people beyond the direct participants” and “any issue in which the public is interested.” Nygård, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042 (2008).

Public Figures and Public Interest in Defamation and Privacy Law

Public Figures (General-purpose and Limited-purpose). Under the First Amendment, individuals fall into different categories. A general-purpose public figure is one who “has assumed roles of especial prominence in the affairs of society,” or otherwise enjoys “pervasive fame or notoriety” such that he is public in all contexts. More commonly, a limited-purpose public figure is one who “voluntarily injects himself or is drawn into a particular public controversy” and thus becomes a public figure only with respect to that issue law.justia.com. As the Supreme Court explained in Gertz v. Robert Welch, Inc., “absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society,” a person is not a public figure “for all aspects of his life”; rather, the question is “determined by reference to [his] participation in the particular controversy giving rise to the defamation” supreme.justia.comlaw.justia.com. California law follows the same test. In Vegod Corp. v. ABC, the California Supreme Court, quoting Gertz, reaffirmed that some individuals (e.g. celebrities or high‑ranking officials) are public figures in all contexts, but more often a person becomes a public figure only by voluntarily thrusting himself into a public issue law.justia.comlaw.justia.com. Likewise, in Hutchinson v. Proxmire (1979), the U.S. Supreme Court reiterated that public figures are those who either (1) occupy positions of such power and influence that they are public figures for all purposes, or (2) have “thrust themselves to the forefront of particular public controversies” to influence outcomes law.cornell.edu. Thus, simply being newsworthy or tangentially involved in an issue does not make one a public figure; there must be either widespread fame or voluntary invocation of the public spotlight.

Matters of Public Interest/Concern. The term “public interest” or “public concern” applies not to persons but to topics. Courts look at whether the speech at issue relates to an issue “of public or general interest.” Generally, information about crime, politics, public health, or safety on public property (e.g., a helicopter rescue on a public highway) qualifies as a matter of public concern law.justia.com. Under First Amendment jurisprudence, speech on matters of public concern is given the highest protection. In the privacy context, the press has a privilege to publish newsworthy facts even when they touch on private lives, because the public has a “legitimate interest” in such events law.justia.com. In Shulman v. Group W Productions (Cal. 1998), for example, the California Supreme Court emphasized that information about an emergency rescue was newsworthy, and thus publication of the facts (though private in nature) was protected by the First Amendment law.justia.comlaw.justia.com. As the U.S. Supreme Court held in Cox Broadcasting Corp. v. Cohn, even a state law cannot punish a reporter for publishing truthful information (the identity of a rape victim) that was obtained from public court records supreme.justia.com. Similarly, in Bartnicki v. Vopper, the Court recognized that a private telephone conversation about public-school labor negotiations was a “matter of public concern,” and accordingly the First Amendment shielded its disclosure even though the tape had been intercepted illegally by a third party supreme.justia.com.

In short, speech on matters of public concern is presumptively protected. Courts often hold that in defamation cases involving public concern, the plaintiff must bear additional burdens (see below). In privacy cases, the newsworthiness of the subject generally trumps privacy claims. The California Supreme Court has noted that the First Amendment “greatly circumscribes” the right of even a private person to recover damages for the publication of private facts when those facts involve public or legitimate newsworthy eventslaw.justia.com.

Defamation Law and the Actual Malice Standard

Under New York Times Co. v. Sullivan (1964), the Supreme Court set the rule for defamation involving public officials or figures. Sullivan held that the First Amendment forbids a public official from recovering damages for defamatory falsehood relating to official conduct unless he proves the statement was made with “actual malice” – i.e. knowledge of falsity or reckless disregard for the truth law.cornell.edu. That is, public officials (and by extension public figures) cannot recover for defamation unless the speaker acted with conscious falsity or a high degree of awareness that the statement was probably false law.cornell.edu. As the Court explained, this stringent standard is necessary so that critics will not be deterred from “free and open debate” even if they make some factual errors law.cornell.edu.

In Curtis Publishing Co. v. Butts (1967), the Court extended Sullivan’s actual‑malice rule to public figures in addition to public officials law.justia.com. The Court did not provide a single formula for public figures, but clarified that persons who thrust themselves into public controversies (or otherwise achieve wide renown) must likewise prove the speaker’s knowledge or reckless disregard of falsity. As Vegod (CA) summarized, Butts “held that public figures – like public officials – must prove actual malice to recover for defamation” law.justia.com.

By contrast, for private individuals the Court has allowed states some leeway. In Gertz v. Robert Welch, Inc. (1974), the Court refused to extend Sullivan’s standard to a lawyer who was a private person. Instead, it held that states may impose liability for defamation of private individuals (subject to at least negligence), so long as they do not impose strict liability supreme.justia.comsupreme.justia.com. The Court emphasized that private individuals are more vulnerable and deserve more protection; hence, it allowed recovery without proof of actual malice, provided the defendant was at least negligent about the truth supreme.justia.com. Gertz did insist, however, that a plaintiff who is a private figure suing a media defendant must prove the falsity of the statement to recover damages on matters of public interest, and that punitive damages still require a showing of actual malice supreme.justia.comlaw.cornell.edu.

The interplay between “public concern” and defamation burdens was further refined in Dun & Bradstreet v. Greenmoss Builders (1985) and Philadelphia Newspapers v. Hepps (1986). Hepps held that when a defamation claim involves speech on a matter of public concern, the private plaintiff must prove the statement’s falsity as part of his case, overriding the common-law presumption of falsitylaw.cornell.edu. And Dun & Bradstreet emphasized that Gertz’s restrictions on presumed and punitive damages apply only where the speech involves a public interest; in that case, selling credit reports was deemed not a matter of public concern, so the First Amendment did not compel the Gertz rulelaw.cornell.edu.

Actual Malice Defined. The Supreme Court has made clear that “actual malice” under Sullivan is a constitutional term of art. It means publishing with knowledge of falsity or “reckless disregard for the truth,” which is a high standard – much more than ordinary negligence law.cornell.edulaw.justia.com. Reckless disregard requires more than an ordinary failure to investigate; it requires a “high degree of awareness of probable falsity”law.cornell.edu (see St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). The Court has rejected efforts to lower the standard in subsequent cases.

In California, defamation law parallels the federal framework in practice. For libel or slander actions by public figures, the plaintiff must show actual malice. Notably, California’s Civil Code §45a codifies this: it requires that a plaintiff prove “clear and convincing” evidence of actual malice in order to recover punitive damages against a media defendant. The Vegod decision (CA) explicitly adopted the Gertz definitions of public figure, and held that California grants no broader privilege to media than federal law law.justia.comlaw.justia.com.

Privacy and the Public Interest Defense

Privacy torts (such as intrusion upon seclusion or publication of private facts) intersect with public interest when the defendant claims the material was newsworthy. The First Amendment constrains liability for publishing truthful information about private individuals on matters of public interest. In Cox Broadcasting v. Cohn, the Supreme Court struck down a Georgia law that punished a TV station for printing a rape victim’s name (obtained from public trial records), holding it unconstitutional to bar the press from reporting information in the public record supreme.justia.com. Similarly, Florida Star v. B.J.F. (1989) barred a civil suit against a newspaper that inadvertently published a victim’s name from a police report. These cases establish that where the subject matter is of public concern, privacy claims based on publication of true, lawfully obtained information generally fail.

In California, Shulman v. Group W Productions (1998) illustrates the balance between privacy and public interest. The court recognized a “fundamental legal problem” in drawing the line between “private” and “public and general interest” law.justia.com. In that case a helicopter rescue was videotaped and broadcast without consent. The California Supreme Court held that the rescue events were newsworthy and of legitimate public interest law.justia.com. Accordingly, the broadcast of those facts (public disclosure of private facts) was protected by the First Amendment, and summary judgment for the media was proper on the publication claim. However, the court also held that the intrusion itself – the act of filming the victims without consent – was not justified by newsworthiness and could be actionable law.justia.com. Thus, California recognizes that newsworthiness can defeat a privacy (publication) claim but does not automatically immunize invasive newsgathering methods. As the Shulman court noted, Cox Broadcasting and Florida Star together “greatly circumscribe” a private figure’s privacy rights in publication of private facts law.justia.com.

Additionally, courts have developed a “newsworthiness privilege” in privacy law. Under this doctrine, media defendants have a conditional privilege to publish true information of public interest. For example, California’s Civil Code § 1708.8 (the privacy law) does not explicitly create a constitutional defense, but California jurisprudence treats newsworthy material differently. If a lawful recording or observation captures matters of public concern, courts have declined to impose liability (e.g. People v. Buckley, 6 Cal.4th 289 (1993), immunizing reporters who overhear police radio dispatches; Bartnicki, 532 U.S. at 522-25). As a leading treatise put it, “[t]he news media’s right to investigate and relate facts about the events and individuals of our time” may override an individual’s privacy interest when those facts are of legitimate public concern law.justia.com.

Criminal and Civil Enforcement

Criminal Defamation. Criminal defamation laws (libel/slander as crimes) have largely been curtailed by constitutional law. In Garrison v. Louisiana (1964), decided the same day as Sullivan, the Supreme Court invalidated a state criminal libel statute because it lacked an actual-malice requirement law.cornell.edu. Shortly thereafter, Ashton v. Kentucky (1966) struck down a vague criminal libel common-law definition. These decisions mean that speech which might give rise to criminal defamation must also satisfy First Amendment safeguards. In practice, criminal defamation prosecutions are rare, and courts have read Sullivan’s standards into any review of such statutes.

Civil Enforcement and Privileges. Civilly, defendants to defamation or privacy suits often invoke privileges grounded in public interest. The First Amendment itself is treated as a privilege for speech on public matters; if the plaintiff is a public figure, the Sullivan standard is essentially a constitutional privilege. In addition, many states have enacted statutory privileges (e.g. fair-report privilege) and notice statutes requiring corrections. California law specifically provides an absolute privilege for publication of judicial proceedings and certain official actions, and a qualified privilege for reporting “public proceedings” under Civil Code § 47. These reflect the same policy: transparency in matters of public concern. For example, the California Supreme Court has held that a newspaper’s publication of the details of a police investigation was privileged so long as the report was accurate and related to a public proceeding.

Furthermore, in California the anti-SLAPP statute (Code Civ. Proc. §425.16) provides a procedural shield for statements made “in connection with an issue of public interest.” Thus, if speech is on a public-issue (broadly defined), a defamation suit can be struck unless the plaintiff shows a probability of prevailing. In Seelig v. Infinity Broadcasting (Cal. Ct. App. 2002), for instance, the court held that a radio program’s mocking of a reality TV contestant was “in connection with an issue of public interest” (the show and the contestant’s conduct), and the insults were not actionable under anti-SLAPP law.justia.com.

Other Privacy and Speech Crimes. California and federal law also intersect on newsgathering crimes. Penal laws against eavesdropping or wiretapping (e.g. California Penal Code § 632) impose criminal sanctions on unauthorized recording of communications. But again, the newsworthiness of the communication can affect enforcement. In Bartnicki, the Supreme Court held that even though the interception was illegal, a third-party who lawfully obtained the tape was immune when the content was of public concern supreme.justia.com. Likewise, in People v. Buckley (1993), California’s high court refused to convict reporters who overheard police radio transmissions of private conversations, noting that imposing liability on the press would unduly infringe on the free flow of information about public safety.

California Law: Convergence and Divergence

California’s courts have largely adopted the federal approach but have also asserted independent state-law protections. On defamation, California Civil Code §§44–46 track the Sullivan/Gertz framework; notably, §45a requires actual malice for punitive damages against media. California has recognized that Gertz’s distinction between public and private figures is constitutionally grounded, and it uses that analysis for both libel and slander actions law.justia.comlaw.justia.com. Thus, a California state court will not allow punitive damages for defaming a private person unless actual malice is shown (per Civil Code § 45a and Gertz).

On privacy, California historically gave strong protection to privacy under its state constitution, but modern decisions like Shulman align more with federal free-speech values: truth and newsworthiness are powerful defenses. The California Constitution’s Speech Clause (Art. I, §2(a)) has been interpreted coextensively with the First Amendment in this area.

One notable California development is the explicit legislative anti-SLAPP framework, which requires early dismissal of suits that chill public participation. California courts have read “public interest” expansively under this statute, protecting even satirical commentary on entertainment events as matters of public debate law.justia.com. This is broader than any federal analogue. On the other hand, California civil law still allows private plaintiffs somewhat more recovery in some contexts. For example, California law (unlike federal) does not impose the Gertz requirement of proving falsity on private plaintiffs in all cases; although federal courts require falsehood be proven in public-concern cases law.cornell.edu, California law has not wholly abrogated the common-law presumption of falsity for private plaintiffs (though defendants can often force plaintiff to prove truth under California’s jury instructions and policy of free debate).

In sum, California defamation and privacy law generally track the federal standards for public figures and public issues, but California’s Constitution, statutes, and cases provide additional procedural mechanisms (like anti-SLAPP) and have carved out specific rules (e.g. punitive-damage thresholds) that strengthen First Amendment protections. Outside the speech context, California also recognizes intrusion upon seclusion as a privacy tort; unlike publication claims, intrusion claims often have no First Amendment privilege, as shown in Shulman. Thus, while California’s approach aligns with Sullivan/Gertz on the key question of public status and malice, it sometimes extends protections for free expression beyond federal law and sometimes imposes state-law duties (e.g. invasion of privacy claims) that must be analyzed under First Amendment constraints.

Constitutional Principles

The bedrock principle is that “erroneous statement is inevitable in free debate,” and constitutional doctrine must tolerate some defamation to ensure robust public discourse law.cornell.edu. The First Amendment firmly places political and public-issue speech at the core of protected expression. Criticism of public officials and figures – even harsh or personally damaging criticism – is part of the “uninhibited, robust, and wide-open” debate that the Amendment was designed to protect law.cornell.edu. Commenting on a person’s fitness for public office, or matters touching on public welfare, is virtually always protected speech; courts have rejected distinctions between public and private attributes when those attributes bear on fitness or honesty in office law.cornell.edu. Indeed, in Hustler Magazine v. Falwell (1988), the Court underscored that public figures cannot claim injury to emotional privacy from a parody or satire unless they satisfy the actual-malice standard: “the First and Fourteenth Amendments prohibit public figures… from recovering damages… without showing… that the publication contains a false statement of fact… made with actual malice”supreme.justia.com. This reflects the high premium given to debate on matters of public concern, even when that debate includes crude or offensive commentary.

In all these contexts, the key inquiry is whether the person or subject is sufficiently public and the speech sufficiently of public interest to warrant heightened protection. When it is, defamation and privacy claims face the actual malice hurdle and other constitutional limits (no liability without fault, proof of falsity, etc.). When it is not (private person and purely private matter), the state has more leeway. But in either case, courts must balance any reputational or privacy interest against the constitutional value of free expression. The Supreme Court and California courts have repeatedly emphasized that speech relating to public issues and public figures lies at the core of the First Amendment’s protection law.cornell.edulaw.justia.com.

Sources:

Key U.S. Supreme Court cases include New York Times Co. v. Sullivan, 376 U.S. 254 (1964);Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Bartnicki v. Vopper, 532 U.S. 514 (2001); and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Cal. Const. art. I, §2 law.justia.com; Smith v. Daily Mail, 443 U.S. 97 (1979); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) thefire.org; Bartnicki v. Vopper, 532 U.S. 514 (2001) thefire.org; Snyder v. Phelps, 562 U.S. 443 (2011) thefire.org; Texas v. Johnson, 491 U.S. 397 (1989)

California Supreme Court authorities include Vegod Corp. v. ABC, 25 Cal.3d 763 (1979); Shulman v. Group W Productions, Inc., 18 Cal.4th 200 (1998); and related anti-SLAPP jurisprudence such as Seelig v. Infinity Broadcasting Corp., 97 Cal.App.4th 798 (2002).

These cases define and illustrate the standards discussed above. All principles are grounded in the First Amendment’s free-speech protections as applied through the Fourteenth Amendment.

 in Smith v. Daily Mail Publishing Co. (1979), the Court held that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” This so-called “Daily Mail principle” ensures the press, or others who post truthful information, cannot face punishment for publishing the names of rape victims and juvenile offenders, as well as other sensitive information obtained lawfully. “Lawfully obtained” means the publisher obtained the information from, for example, a public record or material in the public domain, rather than intercepting the material illegally.

The First Amendment also protects publication of truthful information received from a human source. As the Supreme Court explained in Bartnicki v. Vopper (2001), it doesn’t matter if the source obtained the material unlawfully, as long as the publisher did not participate in the illegal action and merely received the information from the source.

First Amendment protects much offensive, obnoxious, and even repugnant speech. Justice William Brennan famously referred to this as “the bedrock principle” of the first freedom in the flag-burning case Texas v. Johnson (1989). Current Chief Justice John Roberts expressed this principle poignantly in Snyder v. Phelps (2011), stating that even the inflammatory rhetoric of the Westboro Baptist Church — known for picketing military funerals with signs that read “God hates fags” and “Thank God for dead soldiers” — was protected:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

First Amendment principles, a concept from the celebrated libel law decision New York Times Co. v. Sullivan (1964): Namely, the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

“Thinking Outside the Dox: The First Amendment and the Right to Disclose Personal Information” that “[h]arassment and threat laws already exist to penalize people who cross the line from disclosing information to actually acting on the information” and engaging in unprotected conduct such as stalking.  

If the poster falls into one of the other existing narrow categories of unprotected speech, it is also not protected. For example, if a poster utters a true threat then he beomces a doxxer and thus is not protected by the First Amendment. Likewise, if a poster or bloogger incites imminent lawless action — intentionally provoking others to engage in immediate unlawful action — then he beomces a doxxer and thus is not protected by the First Amendment.  True Threat Test Watts v. United States – True Threat Test – 1st Amendment

The Value of Telling the Truth – Speaking Upright

I. CORE RULE: PROTECTED SPEECH ≠ “COURSE OF CONDUCT”

Section 527.6 defines “harassment” as a “course of conduct” that seriously alarms/annoys and serves no legitimate purpose, but it expressly states: “Constitutionally protected activity is not included within the meaning of ‘course of conduct.’” (CCP § 527.6(b)(1).) The same carve-out appears in the stalking statute. (Pen. Code § 646.9(k).) If the petition relies on Zullo’s non-threatening flyers/posts about public issues, the petition fails as a matter of law.

II. NO “TRUE THREATS,” NO INJUNCTION

A speech-based restraining order requires more than repeated criticism. The First Amendment prohibits punishment of speech unless it is a true threat or otherwise unprotected; after Counterman, the speaker must have at least recklessly disregarded the threatening nature of the communication. (600 U.S. at 73–82.) Nothing in petitioner’s declarations meets that standard.

III. PRIOR RESTRAINT: PRETRIAL SPEECH GAGS ARE INVALID

Broad bans on speech before any adjudication of falsity or illegality are unconstitutional prior restraints. (Evans, 162 Cal.App.4th at 1169–1173.) Only narrow, post-trial injunctive relief limited to statements adjudicated false may issue. (Balboa Island, 40 Cal.4th at 1156–1161.)

IV. EVIDENTIARY OBJECTIONS

Hearsay (Evid. Code § 1200) / Secondary-Evidence Rule (Evid. Code § 1521): If the content of a writing (including digital posts; Evid. Code § 250) is offered for its truth, petitioner must lay the foundation or present the original/credible secondary evidence; partial, illegible images lacking context should be excluded or given no weight.

V. OPTIONAL NARROW RELIEF (ONLY IF THE COURT FINDS MISCONDUCT)

If the Court believes some conduct (not speech) crossed a line (e.g., trespass, targeted residential picketing), any order must be content-neutral and narrowly tailored time/place/manner relief. (Frisby v. Schultz (1988) 487 U.S. 474; McCullen v. Coakley (2014) 573 U.S. 464.) A broad ban on speaking, posting, or distributing literature would be unconstitutional.

Quick cite list (tables/points)

• Anti-SLAPP scope & mechanics: Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53; Navellier v. Sletten (2002) 29 Cal.4th 82; Baral v. Schnitt (2016) 1 Cal.5th 376; FilmOn.com (2019) 7 Cal.5th 133; Bonni (2021) 11 Cal.5th 995.

• Fees: CCP § 425.16(c)(1); Ketchum v. Moses (2001) 24 Cal.4th 1122.

• First Amendment protection: Snyder v. Phelps (2011) 562 U.S. 443; Counterman v. Colorado (2023) 600 U.S. 66; Milkovich (1990) 497 U.S. 1; Hepps (1986) 475 U.S. 767; New York Times v. Sullivan (1964) 376 U.S. 254.

• Prior restraint: Evans v. Evans (2008) 162 Cal.App.4th 1157; Balboa Island (2007) 40 Cal.4th 1141.

• Harassment carve-out: CCP § 527.6(b)(1); Pen. Code § 646.9(k).

• Aiding/Conspiracy limits: Applied Equipment (1994) 7 Cal.4th 503.

• Authentication: Evid. Code §§ 1401, 403, 250, 1521; People v. Valdez (2011) 201 Cal.App.4th 1429; People v. Goldsmith (2014) 59 Cal.4th 258.

• Statute: Penal Code §653m(a)–(e) (text incl. good-faith and return-call provisions). California.Public.Law

• Constitutionality & scope: People v. Hernandez, 231 Cal.App.3d 1376 (1991) (upholding (a) & (b), emphasizing narrow focus on intentional harassment). Justia

• Return-call pleading: People v. Lampasona, 71 Cal.App.3d 884 (1977) (old gap later addressed by §653m(d)). Justia

• First Amendment “true threats”: Watts v. United States, 394 U.S. 705 (1969); Virginia v. Black, 538 U.S. 343 (2003). Justia Law+1

• Public-concern/petitioning: Snyder v. Phelps, 562 U.S. 443 (2011); NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). Justia Law+1

• Demurrer standard: Penal Code §1004; see order explaining face-of-pleading rule. closeupsblog.com

First Amendment

ITS IS OUR FIRM OPINION that We believe

Elonis v. United States (2015) – Threats – 1st Amendment

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

Watts v. United States – True Threat Test – 1st Amendment

Watts v. United States True Threat decision – 1st Amendment

True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – 1st Amendment

Anti-SLAPP Law Cases – Case Law Summaries & Citings

How Anti-SLAPP Laws Protect Your Right to Free Speech

Anti-SLAPP Law in California

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

Attorney Liability for Meritless Litigation Leading to Harm

Free Speech, the First Amendment, and Social Media

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Life is Chess!, or…. Is Chess Life?

The Eagle and The Crow – The Ignorant Crow vs The Ascending Eagle

Lawyers are not that special, a high IQ is not needed a mere 100-130 can become this shithole career, they come in at average IQ of 100 all the way to 130 Moderately gifted and that would be a top tier lawyer., but the most successful people on the planet HAVE NO DEGREE FROM A COLLEGE, yet high IQs with fast learning minds. The high aptitude of an inttellect wwith an IQ score of 168, like the authors is considered exceptionally high and falls within the “exceptionally gifted”

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• Fact: Fair use is a right that accommodates the First Amendment.
• Fact: The US Constitution clearly states that the purpose of the intellectual property system is to “promote the progress of science and the useful arts.”
• Fact: Fair use is a right that exists in addition to specific exceptions.
• Fact: The statute, numerous court decisions, and best practices provide ample guidance.
• Fact: Courts have upheld fair use for commercial entities and commercial uses in a wide range of cases.
• Fact: Numerous circuits have upheld mirror-image copies as transforma- tive and applied fair use.
• Fact: Fair use or fair dealing is a doctrine widely incorporated around the world.
• Fact: Fair use is a exible standard and all four statutory factors are considered together.
• Fact: Fair use has a long history and the 1976 Copyright Act simply codi ed a common law practice.
• Fact: Fair use is a fairly predictable doctrine.

Fair use is a copyright concept that allows works to be used in ways that otherwise would infringe on the copyright but are allowed because the uses are particularly beneficial to society and not particularly harmful to the copyright owner. Fair use thus limits the rights of copyright.

Fair use prevents copyright from running afoul of the First Amendment

The Supreme Court has portrayed the concept of fair use as a way of preventing copyright protection from running afoul of the First Amendment’s guarantees of freedom of speech and press.

Congress wrote the “well-established” principles of fair use into law in the Copyright Act of 1976. The act articulates a four-factor balancing test to determine whether a use is a fair one:

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• and (4) the effect of the use on the potential market for or value of the copyrighted work.

Nonprofit, educational uses typically allowed under fair use

In any consideration of use, a commercial application would weigh against fair use; a nonprofit, educational use would weigh in favor of fair use.

Other potentially fair uses specifically mentioned in the act are “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use purposes mentioned in the legislative history of the 1976 act include use in a parody, a summary with brief quotations, or reproductions by libraries or archives for preservation purposes.

If a use is “transformative” — that is, if it creates some new and markedly different work that benefits the public — then such use may weigh in favor of fair use. The legislative history of the act contains specific guidelines as to what constitutes fair use for teaching uses of books, articles, and musical works.

Nature of protected work is a factor in fair use

The nature of the protected or original work is also a factor. Fair use is more likely to be associated with use of a published work than an unpublished work. And use of a factual work such as a biography or research report is more likely to be deemed fair than is use of an original “core copyright” work such as a play or musical work.

The portion used is weighed in both its total amount and in its substantiality — that is, how important the part used is to the original work. Finally, the impact of the use on the market value of the original work is weighed with an eye toward whether the new use creates some kind of substitute for the original or whether the new use is one for which the owner of the original work might expect to be compensated.

Use as a criticism or commentary that prompts the public not to want to see or read the original is not considered to be market harm.

This article was originally published in 2009. Geoffrey P. Hull is a retired Professor Emeritus from Middle Tennessee State University.

By Geoffrey P. Hull https://mtsu.edu/first-amendment/article/956/fair-use

Attorney Liability for Meritless Litigation Leading to Harm

How Anti-SLAPP Laws Protect Your Right to Free Speech

The First Amendment protects freedom of speech. We are free to speak out on issues we care about without fear that the government will stop us or punish us.

But it can be risky to criticize public figures. Powerful people often have the financial resources to respond to criticism with a lawsuit.

This type of lawsuit is called a SLAPP, which stands for Strategic Lawsuit Against Public Participation. The goal of a SLAPP is to get a person to retract their criticism of the person or business. But there are now a growing number of anti-SLAPP laws designed to protect speakers from the threat of going to court to defend their First Amendment right to free speech.

What are anti-SLAPP laws?

Anti-SLAPP laws are designed to protect free speech from being threatened or shut down by people on the receiving end of critical speech. They are designed to prevent SLAPP lawsuits.

What are SLAPP lawsuits?

University of Denver professors Penelope Canan and George Pring created the term SLAPP in the 1980s to refer to a lawsuit whose primary purpose is harassment and intimidation.

The goal is to force someone to take back a critical statement – or not make it in the first place – or else face an expensive lawsuit.

Both the financial and emotional toll are often greater for the defendant than the plaintiff, the person bringing the suit. Most SLAPP suits are filed by powerful people or corporations to protect their reputations against criticism from average people. They are often well-resourced and able to rely on their legal teams to do all the work. Defendants have less money to pay lawyers and must actively participate in their own defense.

How do SLAPP lawsuits affect people’s free expression?

To end or prevent a SLAPP, people will frequently agree to apologize and change their statements and promise not to speak out in the future. This sends a clear message to others who might speak critically as well. The result is the chilling of free speech and healthy debate about important matters of public concern.

Most SLAPP suits are based on claims of defamation or damaging someone’s reputation. But they can also claim a breach of contract, civil rights violations, interfering with the right to do business, or copyright or trademark infringement. They range from complex lawsuits filed in federal court to individual disputes over purely local matters.

How do anti-SLAPP laws protect free expression?

An anti-SLAPP law is designed to prevent SLAPP lawsuits.

Thirty-three states and the District of Columbia have anti-SLAPP laws. But despite repeated attempts, Congress has never passed a federal anti-SLAPP law. People in 17 states, and many people who are sued in federal court, lack protection from SLAPP suits.

Anti-SLAPP laws make it easier for someone who has been sued for exercising their First Amendment rights to get a SLAPP lawsuit dismissed quickly.

More important, anti-SLAPP laws deter people from trying to use lawsuits to silence others. While anti-SLAPP laws vary from state to state, all offer one or more of the following protections:

1. They protect a wide range of First Amendment activities.

Anti-SLAPP laws require that the person being sued show that the lawsuit is targeting their First Amendment rights. Some only apply to statements made in an official government proceeding, like allegations made during a public-school board meeting or in front of the city council. Others apply to any speech on a matter of public concern, no matter where, when or how it occurs. These strong anti-SLAPP laws will also give the speaker the benefit of the doubt that the speech is about a matter of public concern.

2. They put the burden on the person suing.

In most lawsuits, the person being sued can only get the case dismissed in its early stages if they can clearly show they will win; if not, the case can potentially continue for months or even years at great expense.

Anti-SLAPP laws recognize the importance of free speech by putting the burden on the person who is suing to demonstrate why the lawsuit needs to happen. Once the person being sued shows the lawsuit is challenging his or her free speech rights, an anti-SLAPP law requires the person bringing the lawsuit to demonstrate they are likely to win the case. If they cannot do so, the case will be dismissed.

3. They accelerate a final decision.

An initial step in most lawsuits is a long and expensive process where each side collects information from the other in advance of trial. There are often several pre-trial hearings on legal issues. Anti-SLAPP laws pause these time-consuming steps until the court decides who should win.

4. They allow immediate appeal of the initial decision.

Most court cases require that the entire process plays out before the losing party can appeal. Anti-SLAPP laws often say that a defendant can immediately appeal a decision, saving significant time and money.

5. They award attorney fees and court costs to a winning defendant.

The U.S. legal system doesn’t require that a person who unsuccessfully files a lawsuit pay the legal fees and costs of the person they sued. This means successfully defending yourself in a lawsuit is often a hollow victory. Yes, you won but you also had to pay tens of thousands of dollars to win. An anti-SLAPP law says that if the person suing to stop the speech loses, then they must pay the legal fees and court costs of the person being sued.

What are some examples of SLAPP lawsuits?

Some of the biggest First Amendment cases in our history meet the definition of a SLAPP:

• New York Times Co. v. Sullivan (1964) is considered the most important protector of press freedom. It set the high standard that a public figure filing a defamation lawsuit must show that an allegation made about them was false and that the speaker who made the mistake knew or should have known it was wrong. This standard makes it possible to challenge and criticize powerful people. The lawsuit involved a paid political advertisement in The New York Times designed to raise money for the civil rights movement by criticizing law enforcement response to civil rights protests. It was filed by L.B. Sullivan, Montgomery, Alabama, police commissioner, even though he wasn’t named in the advertisement. Sullivan said that certain facts in the article were incorrect; the paper countered that they were minor mistakes and didn’t matter in terms of the public’s overall view of the treatment of civil rights protesters by southern law enforcement. The lawsuit was filed in Alabama where a jury would be more sympathetic to Sullivan than to the northern newspaper. The jury awarded Sullivan $500,000 to send a message to civil rights activists. But the U.S. Supreme Court later overturned the verdict and protected the newspaper.
• NAACP v. Claiborne Hardware Co. (1982) also had roots in the civil rights movement. In 1966, a local branch of the NAACP organized a boycott against white merchants who discriminated against Black people in Mississippi. The business owners sued the NAACP. Most protesters’ actions were protected by the First Amendment, but a few people took unprotected actions like threatening store owners. A Mississippi court ruled for the business owners, ordering the NAACP to pay $3.5 million in damages. It took 16 years before the Supreme Court overturned that verdict, saying “the boycott clearly involved constitutionally protected activity” designed “to bring about political, social, and economic change.”

Most SLAPP suits involve everyday speech by average people:

• In 2003, the Northwest Bronx Community and Clergy Coalition picketed several buildings in New York where tenants lived in terrible conditions. Instead of fixing the problem, building owners sued the NWBCCC for trespass, libel and wrongful interference with business relationships. The court cases went on for several years. They were eventually dismissed but cost NWBCCC more than $1 million in legal fees and forced the organization to focus on defending the lawsuit rather than advocacy efforts.
• In 2010, college student Justin Kurtz’s car was towed from his apartment complex. He started a Facebook group called “Kalamazoo Residents against T&J Towing,” which criticized the towing company’s aggressive practices. T&J Towing filed a lawsuit seeking $750,000 in damages from Kurtz for alleged defamation. The lawsuit lasted eight months before Kurtz and the company decided to resolve their case on their own, out of court. Kurtz was not reimbursed for his legal fees but did exact some measure of revenge: the case went viral with The New York Times eventually publishing a front-page article and the Facebook group grew to 14,000 members.
• In 2010, the Washington City Paper, a free weekly newspaper, published an article that catalogued many alleged wrongdoings by Dan Snyder, the then-owner of Washington, D.C.’s professional football team. He was not amused and filed a defamation lawsuit. Snyder’s lawyers warned the corporate owners of the City Paper that “the cost of litigation would presumably quickly outstrip the asset value” of the newspaper. This letter, in effect, said it would be easier for the City Paper to apologize and go away than stand by its story. The paper did just that, and Snyder eventually dropped the lawsuit.
• In 2019, then-Congressman Devin Nunes filed – and lost – a lawsuit against Twitter and the creators of two parody accounts “Devin Nunes’ Cow” (a mocking reference to his family farm) and “Devin Nunes’ Mom.” Nunes lived in California but filed his lawsuit in Virginia, where there aren’t anti-SLAPP laws. He demanded $250 million. He lost but has filed several different lawsuits since 2018 seeking more than $900 million from those he believes has wronged him. To date, he has not won any of them.

What are some examples of anti-SLAPP laws that protected free speech?

Anti-SLAPP laws have successfully protected speakers in a variety of cases throughout the country:

• In 2003, a Baltimore developer tried to sue future tenants for $25 million after the tenants criticized changes to building plans. The lawsuit was dismissed under the Maryland anti-SLAPP law.
• In 2015, Robert and Michele Duchouquette posted an unfavorable review of Pets for Care on Yelp. The pet-sitting company sued for defamation and for violation of a clause in their service contracts that says clients cannot make negative comments about them. Pets for Care sought up to $1 million and removal of the negative review. Using the Texas anti-SLAPP law, the Duchouquettes got the lawsuit dismissed. They were reimbursed for more than $23,000 in legal fees and other costs.
• In 2017, Phoenix business owner Charlie Lai criticized commercial property owner True North’s remodeling plans. True North tried to sue. Lai used the Arizona anti-SLAPP law to get the lawsuit dismissed, and the court ordered True North to pay his attorney fees.

Anti-SLAPP laws and the First Amendment

While the First Amendment provides strong legal protection for a free press and for our rights as individuals to speak, assemble and petition the government, when a lawsuit challenges these freedoms, it can get costly. Anti-SLAPP laws serve as a great equalizer. They protect those who might otherwise have to self-censor in the face of legal threats. They allow us to speak out on matters that affect our everyday lives. source

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

Court tosses disbarred lawyer’s suit over newspaper article on his ethics case with a ‘crime’ header

An appeals court in California has tossed a suit filed against the San Francisco Chronicle by a now-disbarred lawyer who claimed the newspaper defamed him partly by putting a “crime” header caption on a story about his ethics case.

The lawyer, Wade Robertson, also said the September 2013 article defamed him by reporting he had “cheated” an elderly client out of $3.5 million and he had been suspended from law practice.

The San Francisco Chronicle article had reported on a disbarment recommendation stemming from Robertson’s partnership with a 77-year-old Maryland resident who contributed $3.5 million to finance a class action lawsuit in return for a cut of the proceeds. Robertson had used the money for personal investments and failed to disclose that the class action was dismissed, a state bar court had found.

The California Court of Appeal, First District, said in a June 26 unpublished opinion that the article was an accurate report on an official proceeding by the state bar court. The “crime” header, when read in conjunction with the entire article, does not accuse Robertson of any crime, the appeals court said.

In addition, the appeals court said, the state bar court had concluded that Robertson had committed acts involving moral turpitude, dishonesty or corruption in “a deviously orchestrated plan to defraud” the Maryland man. The San Francisco Chronicle accurately summarized the findings, the appeals court said. And its report that Robertson was suspended pending an appeal was “entirely accurate,” the appeals court said, though the actual term for his suspension was a transfer to “involuntary inactive status.”

The appeals court affirmed dismissal of the lawsuit based on California’s anti-SLAPP law, which authorizes a motion to dismiss a suit arising from the right to free speech in connection with a public issue. “From time to time, this court has encountered difficult cases concerning the scope and application of the anti-SLAPP (strategic lawsuit against public participation) statute,” the opinion began. “This case is not one of them.”

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Court tosses disbarred lawyer’s suit over newspaper article