Jason D. Russell
Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Litigation
300 S Grand Ave, Suite 3400
Los Angeles , CA 90071
Phone: (213) 687-5000
Fax: (213) 687-5600
Email: jason.russell@skadden.com
Columbia Univ Law School
Hillary A. Hamilton
Associate, Skadden, Arps, Slate, Meagher & Flom LLP
300 S Grand Ave #3400
Los Angeles , CA 90071
Phone: (213) 687-5576
Fax: (213) 687-5600
Email: Hillary.hamilton@skadden.com
Univ of Virginia School of Law
Adam K. Lloyd
Counsel, Skadden, Arps, Slate, Meagher & Flom LLP
Email: adam.lloyd@skadden.com
UCLA SOL; Los Angeles CA
California Code of Civil Procedure Section 425.16 permits meritless claims in a strategic lawsuit against public participation (aka "SLAPP") to be stricken when based on "act[s] in furtherance" of constitutional rights of freedom of speech and petition "in connection with a public issue," i.e., written or oral statements made before or in connection with "official proceeding[s]" or "made in ... a public forum in connection with an issue of public interest." CCP Section 425.16(e)(1)-(3). The anti-SLAPP statute also includes CCP Section 425.16(e)(4), a catchall provision encompassing "any other conduct ... in connection with a public issue or an issue of public interest." For many years, California courts have broadly interpreted this catchall provision. CCP Section 425.16(e)(4); see also, e.g., Symmonds v. Mahoney, 31 Cal. App. 5th 1096, 1109 (2019) (striking terminated drummer's employment discrimination claim because Eddie Money's "music and concerts were of interest to the public"); Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist., 106 Cal. App. 4th 1219, 1228, 1234 (2003) (finding "statements ... made in connection with governmental review of plans for ... development" protected because "commercial and residential development of a substantial parcel of bayfront property ... is plainly a matter of public interest").
However, in three recent decisions, the California Supreme Court appears to have launched a campaign to curb the broad application of CCP Section 425.16(e)(4). Repeatedly expressing frustration with defendants' assertions that their conduct is protected based on tenuous connections to general "issues of public interest," the court clarified the appropriate CCP Section 425.16(e)(4) analysis in a two-part test: A movant must show both (1) the conduct targeted by the plaintiff's claims implicates an issue of public interest, and (2) the defendant's conduct contributed to the public discussion of that issue.
Rand Resources, LLC v. City of Carson
In February, the Supreme Court decided Rand Resources, LLC v. City of Carson, 6 Cal. 5th 610 (2019). The plaintiffs asserted fraud, breach of contract and intentional interference claims, alleging that they contracted with the city of Carson to act as its exclusive agent in negotiating with the National Football League to build a new stadium there. The city and its mayor instead sent confidential emails about the development of a stadium to a third party, who then contacted NFL representatives about bringing a franchise to Carson. The trial court granted defendants' motion to strike most of the claims, but the appellate court reversed.
The Supreme Court observed that "[t]he parties in this case agree that the building of a sports stadium in the City of Carson to host an NFL team is -- given the wide-ranging impact that a project of such scale could have on the City -- an issue of public interest." However, "to prevail on an anti-SLAPP motion, a defendant must do more than identify some speech touching on a matter of public interest," because "[a]t a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance." (Emphasis added.) While the anti-SLAPP statute "must be read broadly, in light of its remedial purpose," it does not "swallow a person's every contact with government, nor does it absorb every commercial dispute that happens to touch on the public interest."
The court held that plaintiffs' fraud-based claims against the city defendants could not be stricken under CCP Section 425.16(e)(4), because "defendants' speech concerned only the narrower issue of who should represent the City in the negotiations" but was not "directed to the public issue of whether to 'have an NFL team, stadium, and associated developments in Carson'" and "no obvious connection existed between the identity of the representative and a matter of public concern." (Citations omitted.)
FilmOn.com Inc. v. DoubleVerify Inc.
In May, the Supreme Court decided FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019). The plaintiff alleged DoubleVerify disparaged certain of its websites as containing "Adult Content" or "Copyright Infringement" material in reports that DoubleVerify generated for clients about advertising and viewership. The trial court granted defendant's anti-SLAPP motion pursuant to CCP Section 425.16(e)(4), and the appellate court affirmed, citing the public interest "in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials." (Citations omitted.)
The Supreme Court disagreed, noting that California courts "have struggled -- understandably -- to articulate the requisite nexus between the challenged statements and the asserted issue of public interest -- to give meaning ... to the 'in connection with' requirement" of Section 425.16(e)(4). The court rejected previous courts' attempts to "discern what the challenged speech is really 'about' -- a narrow, largely private dispute, for example, or the asserted issue of public interest," and outlined instead a two-part analysis.
First, courts must "ask what 'public issue or issue of public interest' the speech in question implicates ... by looking to the content of the speech." (Citation omitted.) "Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest," using context to address "the specific nature of defendants' speech and its relationship to the matters of public interest."
Noting "[t]he travails of the lower courts demonstrate that virtually always, defendants succeed in drawing a line -- however tenuous -- connecting their speech to an abstract issue of public interest," the court clarified that "the catchall provision demands 'some degree of closeness' between the challenged statements and the asserted public interest." (Citations omitted.) "[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate." (Emphasis added; citations omitted.) Thus, a court must "examine whether a defendant -- through public or private speech or conduct -- participated in, or furthered, the discourse that makes an issue one of public interest." (Emphasis added.)
The court rejected the appellate court's conclusion that the reports concerned an issue of public interest because, while "the various actions of a prominent CEO, or the issue of children's exposure to sexually explicit media content -- in the abstract -- seem to qualify as issues of public interest under subdivision (e)(4) ... the focus of our inquiry must be on 'the specific nature of the speech,' rather than on any 'generalities that might be abstracted from it.'" (Citations omitted.) DoubleVerify did not further the public conversation on an issue of public interest, the court held, because it "issues its reports not to the wider public ... but privately, to a coterie of paying clients." Defendant's "reports -- generated for profit, exchanged confidentially, without being part of any attempt to participate in a larger public discussion" were "too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision."
Wilson v. Cable News Network, Inc.
In July, in Wilson v. Cable News Network, Inc., the court reiterated and expanded its FilmOn analysis: A "defendant who claims its speech was protected as 'conduct ... in connection with a public issue or an issue of public interest' must show not only that its speech referred to an issue of public interest, but also that its speech contributed to public discussion or resolution of the issue." 7 Cal. 5th 871, 900 (2019) (emphasis added) (citations omitted). In considering employment discrimination, retaliation and wrongful termination claims arising from CNN's firing of field producer Stanley Wilson, the court held that because the plaintiff "was not among those who appear on-air to speak for the organization or exercise authority behind the scenes to determine CNN's message," CNN's "decisions concerning which assignments to give Wilson and whether to continue employing him, without more, had no substantial relationship to CNN's ability to speak on matters of public concern."
The court held that CNN's decision to terminate Wilson for suspected plagiarism in a story about Los Angeles County Sheriff Lee Baca's retirement qualified as conduct protected by Section 425.16(e)(4), because "[d]isciplining an employee for violating ... ethical standards furthers a news organization's exercise of editorial control to ensure the organization's reputation, and the credibility of what it chooses to publish or broadcast, is preserved."
However, CNN's statements to third parties about Wilson's plagiarism did not satisfy CCP Section 425.16(e)(4) as to Wilson's defamation claim. While "Sheriff Baca's retirement was indeed a matter of public interest," the court held that the claim rested not "on statements CNN made about that subject," but "on statements about the reason for Wilson's termination," which, "although they tangentially referenced Sheriff Baca's retirement, did not contribute to any public, or even private, discussion of that subject." Moreover, "Wilson's professional competence and the reasons for his termination" were not issues of public interest because "Wilson is not a figure so prominently in the public eye that any remark about him would qualify as speech on a matter of public concern."
The court also rejected the argument that CNN's discussion of Wilson's termination implicated journalistic ethics, "a larger issue that indisputably is of public interest," as an example of "'the synecdoche theory of public issue in the anti-SLAPP statute'" -- i.e. the discussion of Wilson's alleged plagiarism "is equivalent to a conversation about the ethical lapses of all journalists everywhere." (Citations omitted.) The court held "CNN's alleged statements about an isolated plagiarism incident did not contribute to public debate about when authors may or may not borrow without attribution," and "[t]o sweep in a claim about falsehoods made regarding a nonpublic figure, where the falsehoods do not contribute in any meaningful way to discussion or resolution of an ongoing matter of public significance, would do nothing to advance the statute's stated purpose of shielding defendants from meritless lawsuits designed to chill speech and petitioning on matters of public interest or controversy." (Emphasis added.) Thus, "CNN's privately communicated statements about Wilson's purported violation of journalistic ethics" were not conduct protected by CCP Section 425.16(e)(4).
Conclusion
The California Supreme Court's recent efforts to rein in the lower courts' broad interpretation of the anti-SLAPP statute's catchall provision will likely mean parties seeking to invoke CCP Section 425.16(e)(4) will be met with increased scrutiny and skepticism in California courts. Movants and their counsel should be mindful of the dual showings required to establish the conduct challenged in the complaint satisfies CCP Section 425.16(e)(4) and be prepared to demonstrate not only how that alleged conduct is closely connected to an issue of public interest, but how that conduct contributed to public discussion or resolution of that issue.