California SLAPP jurisprudence is the gift that keeps on giving, especially for weary bloggers looking for something to write about. (SLAPP stands for Strategic Lawsuit Against Public Participation. You can read all about them in our Legal Guide.) Our friend Adrianos Facchetti over at the California Defamation Law Blog has been blogging and tweeting up a storm this week about anti-SLAPP cases.
Of particular interest is a case handed down Tuesday by the California Court of Appeal, Second District, in Guessous v. Chrome Hearts, LLC, No. B212074 (Cal. Ct. App. Dec. 1, 2009). The opinion tackles the question of "whether the filing of a lawsuit in a foreign country is a protected activity under the United States or California Constitutions," and thus falls within the protections of California's "anti-SLAPP" statute, section 425.16 of the California Code of Civil Procedure. (Section 425.16 allows a defendant to strike any non-meritorious cause of action that "aris[es] from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.")
The facts of the Guessous case are somewhat convoluted. In the 1990s, Defendant twice brought suit against the Plaintiffs for trademark and copyright infringement. The parties resolved the second of these two lawsuits by executing a settlement agreement in 1999 that contained a covenant not to sue, the application of which the parties dispute. In 2007, Defendant once again sued Plaintiffs for trademark infringement, this time bringing suit in France. The French court rejected Plaintiffs' interpretation of the settlement agreement as barring the French litigation, and Defendant brought a second lawsuit against Plaintiffs in France later that same year. After the second lawsuit was filed, Plaintiffs brought suit in California, seeking a declaratory judgment of noninfringement and also asserting a claim against Defendant for breach of the settlement agreement, based on Defendant filing the two French litigations. Defendant filed a motion to strike the breach of contract claim, asserting that it was based on a protected activity under the anti-SLAPP statute -- namely, that in filing the French litigation, Defendant was exercising its right to petition the government for redress of its grievances.
In rejecting Defendant's anti-SLAPP motion, the Guessous Court appears to have adopted the reasoning urged by the Plaintiffs on appeal, that the right "to petition the Government for a redress of grievances" enshrined in the First Amendment of the U.S. Constitution, as well as a similar provision in the California Constitution that guarantees the people the right to "petition government for redress of grievances," only address the right to petition federal or state governments in the United States, not a foreign government. Without citation to any authority, the Court held that neither the U.S. nor the California Constitutions protect a citizen's right to petition a foreign government. Thus, the Court found that filing a lawsuit in a foreign country is not a protected activity under the anti-SLAPP statute. In support of this conclusion, the Court cited to the legislative history of Section 425.16 which states that the purpose of the anti-SLAPP statute is to protect the right of a citizen "to influence their government" (the Court's emphasis).
While the result in Guessous doesn't strike me as incorrect, the Court's reasoning raises some interesting questions about the application of California's anti-SLAPP statute to speech on the global Internet. Specifically, given the Court's reliance on the legislative history of the anti-SLAPP statute (that it was intended to protect a citizen seeking to influence "their government"), would online speech by a foreign individual criticizing California officials fall outside the protections of California's anti-SLAPP statute (after all, California isn't their government)? Stretching it a bit further, what would be the result if a U.K. blogger wrote about a governmental corruption scandal in the United Kingdom in which she alleged that a California citizen participated? If the California citizen then sued the U.K. blogger in California court, would the U.K. blogger be unable to invoke the protections of the anti-SLAPP statute? While it's unlikely that the Guessous Court would endorse such a result (we hope), the poorly drafted wording of the opinion certainly leaves open the possibility.
But the news out of California isn't all grim. We're now less than a month away from SB 786 taking effect. What is SB 786, you ask? You can read the full analysis of the bill here. In short, the legislation prohibits government agencies from recovering attorney's fees and costs from individuals who sue to enforce the state's open government laws, unless the court expressly finds the suit to be frivolous. (You can read about one of the cases that prompted SB 786 here and here.)