May 4, 2017

Supreme Court limits reach of anti-SLAPP motions

The Supreme Court today holds in Park v. Board of Trustees of the California State University that California’s anti-SLAPP statute, which allows for an early screening of claims that could chill constitutionally protected free speech or petition rights, does not cover as many lawsuits as some Courts of Appeal had found.  The court’s unanimous opinion by Justice Kathryn Werdegar states, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

Under the decision, a college professor’s tenure discrimination action can proceed, at least without being subject to an anti-SLAPP motion.  The court explained, “while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech.  What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.”  It is proper, the court says, to “differentiat[e] between individual speech that contributes to a public entity’s decision and the public entity decision itself.”

The court reverses a divided opinion by the Second District, Division Four, Court of Appeal.  It disapproves a 2015 decision of the Fourth District, Division One, and a 2012 decision of the Fourth District, Division Two, both of which, the court concludes, “overread” a 2006 Supreme Court opinion applying the anti-SLAPP statute in a case concerning hospital peer review proceedings.  The court also disapproves a 2011 decision by the Fourth District, Division Two.

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