Sunday, September 04, 2011

Protection from legal threats to silence speech

A reader says that she has been threatened with a lawsuit for writing complaint letters about the family court and related legal matters.

Fortunately, California has a stiff law against the Strategic lawsuit against public participation (SLAPP). The purpose of the law is precisely to protect those who exercise their First Amendment rights to speak out on matters of public concern. The law is so strong that there is an Oakland law firm specializing in SLAPP cases, because they can usually get attorney fees from the other side. That means that they will represent you if you have a good case, even if you have no money.

Here is how Wikipedia describes the California anti-SLAPP law:
It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.

If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees.
If you are threatened with a lawsuit, then I suggest reading the above carefully to make sure that it applies to make sure that it applies. If not, you might want to qualify what you say so that you will be protected.

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