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

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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

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• 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

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• 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

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• 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

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• 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

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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

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• 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

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  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

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  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

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  . 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

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• 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

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• 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

Not to be confused with:   Martin v. Thomas et al. 2022 – Employer Independent Negligence

Affirming jury verdict of $20,000 for humiliation and emotional distress arising from officers’ use of excessive force against the plaintiff, where officers twisted his arms behind his back, threw him down some bleachers, placed handcuffs on him and threw him onto hood of police car

Summary of this case from Johnson v. Hankins

Opinion

Briley v. City of W. Covina, 66 Cal. App. 5th 119 (2021)

Jason Briley worked for the City of West Covina as a deputy fire marshal. During his employment, Briley complained that various city officials, including his former supervisor, had ignored his reports of safety issues and engaged in misconduct. The city investigated Briley’s complaints and concluded they were unfounded, but while that investigation was still pending, the city commissioned a second investigation of allegations that Briley had repeatedly engaged in misconduct and unprofessional behavior. At the conclusion of the second investigation, Briley’s employment was terminated. In this lawsuit, Briley alleged whistleblower retaliation under Cal. Lab. Code § 1102.5. At trial, the jury awarded Briley over $500,000 in lost wages, $2 million in past emotional distress damages and $1.5 million in future emotional distress damages – though Briley’s attorney had asked the jury to award only $1.5 million in past and $1.5 million in future emotional distress damages.

In this opinion, the Court of Appeal held that “the jury’s total award of $3.5 million in noneconomic damages is shockingly disproportionate to the evidence of Briley’s harm and cannot stand.” Although Briley testified that the termination was “pretty devastating” and that he had had some “sleep-related issues,” there was no evidence that any of the problems Briley described was particularly severe. The Court held that $1,700 per day for past emotional distress damages was excessive and determined that Briley’s demeanor on the witness stand (he cried) may have resulted in passion rather than measured judgment on the part of the jury. Further, the Court held that the $1.5 million award of future noneconomic damages “stands on even shakier ground” because the $500,000 in economic damages the jury awarded should have eliminated any remaining financial concerns tied to his termination and “also vindicated Briley and counteracted any false or unfair allegations against him.” The Court also determined that Briley’s counsel’s “personal attack” on the city’s counsel (calling him a liar) shortly before the jury began its deliberations may have prejudiced the jury against the city. The Court vacated the damages award and remanded the case for a new trial unless Briley accepted a reduction of the awards to $1 million in past emotional distress damages and $100,000 in future emotional distress damages (i.e., a total reduction of $2.4 million). source