State First Amendment Cases

California

Averill v. Superior Court, 42 Cal. App. 4th 1170 (1996)

Construing the California Anti-SLAPP statute and holding that the word “includes” in the statute means acts that are not listed in the statute may be protected; comments made in private, if made in connection with a public issue, are protected by the anti-SLAPP statute.

Barrett v. Rosenthal, 40 Cal. 4th 33 (2006)

Limiting liability for Internet defamation, holding that Internet users and providers are immune from civil liability for reposting third party content on the Internet under the Communications Decency Act of 1996, 47 U.S.C. § 230.

Briggs v. Eden Council for Hope and Opportunity, 19 Cal. 4th 1106 (1999)

Holding that the anti-SLAPP statute is to be construed broadly and covers any statement arising from petition or petition related activity, regardless of the issue involved.

Holding that “good cause” for discovery under the anti-SLAPP law requires a showing that the specified discovery is necessary for the plaintiff to oppose the motion and is tailored to that end.

Britts v. Superior Court, 145 Cal. App. 4th 1112 (2006)

Holding the anti-SLAPP law does not require a defendant to prove the plaintiff’s intent to chill his constitutional rights.

City of Cotati v. Cashman, 29 Cal. 4th 69 (2002)

Holding that the greater good of an absolute litigation privilege bars claims based on subornation of perjury in a judicial or official proceeding. Holding that the greater good of an absolute litigation privilege bars claims based on subornation of perjury in a judicial or official proceeding.

Doctor’s Co. Ins. Services v. Superior Court, 225 Cal. App. 3d 1284 (2001)

Holding that the anti-SLAPP statute protects statements that were made before regulatory bodies, the medical profession, and the public about a pharmaceutical DuPont Merck was developing. Sparked a legislative amendment to the anti-SLAPP law exempting claims arising from commercial speech. Also noting in dicta that reasons for denial of a special motion to strike under California’s anti-SLAPP law should be put into a statement for the record.

DuPont Merck v. Superior Court, 78 Cal. App. 4th 562 (2000)

Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002)

Companion case to City of Cotati v. Cashman, supra, holding a SLAPP defendant need not demonstrate that the lawsuit was brought with the intent to chill the defendant’s exercise of constitutional speech or petition rights.

Interpreting the California anti-SLAPP law to protect only those activities in furtherance of constitutional rights, and therefore to not protect acts that are illegal as a matter of law. Extortionate speech couched in legal language as a settlement offer is therefore not protected.

Flatley v. Mauro, 39 Cal. 4th 299 (2006)

Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003)

Holding that malicious prosecution claims are subject to the anti-SLAPP law even though such claims are exempt from the California litigation privilege.

Holding that any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees, including fees incurred in the preparation and maintenance of a fee motion.

Ketchum v. Moses, 24 Cal. 4th 1122 (2001)

Lien v. Lucky United Properties Inv., Inc., 163 Cal. App. 4th 620 (2008)

Expressing reservations about DuPont Merck v. Superior Court’s imposition of a requirement for a statement of decision when a trial court grants an anti-SLAPP motion because the law itself has no such requirement and the DuPont Merck court did not explain reasons for departing from the general rule that motions do not require statements of decision.

Holding that a SLAPP plaintiff cannot avoid liability for defendant’s attorney’s fees by dismissing its claim prior to the hearing on defendant’s anti-SLAPP motion. The court must still decide the merits of the anti-SLAPP motion in order to determine whether the defendant is the prevailing party and therefore entitled to fees.

Liu v. Moore, 69 Cal. App. 4th 745 (1999)

Salma v. Capon, 161 Cal. App. 4th 1275 (2008)

Prohibiting amendments to the claim after the anti-SLAPP motion has been filed because allowing such amendments would undermine the purpose of the statute.

Barring a defendant in a SLAPP from seeking attorney’s fees and costs if the suit is voluntarily dismissed prior to the filing of an anti-SLAPP motion.

S.B. Beach Properties v. Berti, 39 Cal. 4th 374 (2006)

Refusing to read an “interest of justice” test into the California litigation privilege, holding that the privilege applies regardless of whether statements made were made to achieve personal objectives or to gain advantage, and not in the interest of justice.

Silberg v. Anderson, 50 Cal. 3d 205 (1990)

rohibiting a SLAPP plaintiff from amending the claim once the court finds the defendant’s prima facie showing has been met, because to allow amendments would undermine the statute by providing the pleader a ready escape from the anti-SLAPP law’s quick dismissal remedy.

Simmons v. Allstate Insurance Co., 92 Cal. App. 4th 1068 (2001)

Tendler v. www.jewishsurvivors.blogspot.com, 164 Cal. App. 4th 802 (2008)

Interpreting the anti-SLAPP law to apply only in causes of action requesting “relief,” and that therefore parties on the receiving end of subpoena requests may not invoke the law to dispose of those requests. AB 2433, 2008 Cal. Stat. 742 addressed the gap in the anti-SLAPP law created by Tendler by amending CAL. CIV. PROC. CODE §§ 1987.1-2 to allow parties or non-parties of SLAPPs brought outside California to quash subpoenas issued in California litigation.

White v. Lieberman, 103 Cal. App. 4th 210 (2002)

Holding that an order declaring the anti-SLAPP motion to be moot is the equivalent of a denial and is appealable.

Wilson v. Parker, Covert & Chidester, 28 Cal. 4th 811 (2002)

(reversed in part by CAL. CIV. PROC. CODE § 425.16(b)(3)). Holding the denial of an anti-SLAPP motion in the underlying action establishes that there was probable cause to support the action, thus precluding a suit for malicious prosecution. Also requiring the plaintiff to demonstrate that the claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment to survive the anti-SLAPP motion.

Colorado

Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984)

Creating anti-SLAPP doctrine, requiring Colorado courts to treat a motion to dismiss based upon a claim that the action arose from protected First Amendment activity as a motion for summary judgment.

Delaware

Plaintiff seeking identity of an anonymous poster must support his underlying claim with facts sufficient to defeat a summary judgment motion.

Doe v. Cahill, 884 A.2d 451 (Del. Supr. 2005)

New Jersey

Plaintiff must make an effort to notify the anonymous poster that he or she is the subject of a subpoena or application for a disclosure order, and give a reasonable time for the poster to file opposition; must set forth the specific statements that are alleged to be actionable; and must produce sufficient evidence to state a prima facie cause of action. If this showing is made, the court balances the strength of that prima facie case against the defendant’s First Amendment right to speak anonymously before deciding whether to quash the subpoena.

Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001)

West Virginia

Limiting the holding of Webb v. Fury by holding that, pursuant to the U.S. Supreme Court’s decision in McDonald v. Smith, petitioning activity involving intentional and reckless falsehoods is not absolutely privileged.

Harris v. Adkins, 432 S.E. 2d 549 (W. Va. 1993)

Holding that the constitutional right of petitioning is absolutely immune from civil liability in Virginia.

Webb v. Fury, 282 S.E.2d 28 (W. Va. 1981)