Actor Frank Sivero sued Fox over his claim that “The Simpsons” character “Louie” was based upon Sivero’s character Frankie Carbone in “Goodfellas.” Sivero’s case was thrown out of court by a California state judge. (See “Fox Gets $250M ‘Simpsons’ Lawsuit From ‘Goodfellas’ Actor Tossed.”) No jury heard his claim. Nor was he defeated by a motion for summary judgment, a traditional pretrial motion to dismiss a claim that should be rejected if there is any triable dispute of fact for a jury to resolve. Instead, Sivero’s claim was dismissed pursuant to an “anti-SLAPP” motion, a powerful procedural device that was originally intended to benefit public interest groups, but has become the courtroom weapon of choice for media companies.
Over two decades ago public interest groups complained to the California Legislature that their lobbying activities were being suppressed by meritless lawsuits from businesses motivated to strike back against their advocacy with the punishing expense of litigation. These groups requested a new legal procedure with which to meet these “Strategic Lawsuits Against Public Participation,” or “SLAPP” suits. The Legislature complied by creating a special motion to strike, or “anti-SLAPP motion,” Cal. Civ. Proc. Code § 425.16, which can result in dismissal of claims arising from constitutionally protected speech or petition activities, concerning a public issue, unless the party filing the suit can demonstrate a probability of prevailing. To add teeth to this new procedure, the Legislature also provided that the Court may award attorneys’ fees to the party prevailing on an anti-SLAPP motion. (See “California’s Anti-Slapp Legislation: A Summary of and Commentary on Its Operation and Scope.”)
Now, if the Concerned Citizens are hit with a meritless defamation suit by Big Developer, brought to punish the Concerned Citizens for lobbying the government against Big Developer’s project, the Concerned Citizens can respond immediately with a special motion to strike, which will test Big Developer’s defamation theory on the merits. If successful, the Concerned Citizens will obtain early dismissal of the suit and possibly an award of their attorneys’ fees.
Insurance and corporate interests often complain that they need legislative protection from supposedly meritless lawsuits beyond the procedural devices that already exist. In this case it was do-gooders who asked for this kind of protection. My view is that the resulting legislation can have unintended results, possibly worse than the perceived problem. I think California’s special motion to strike is an example.
Use of anti-SLAPP motions has grown exponentially beyond the Concerned Citizens scenario. The statute’s broad scope, together with nearly limitless court interpretation of the “public issue” requirement, have made the anti-SLAPP motion the weapon of choice in the hands of media corporations and insurance companies faced with claims related to speech or petition activities.
In Sivero’s case, Fox argued his claim turned upon the genesis of the “Louie” character in “The Simpsons,” a creative work protected by constitutional speech protections, with which I agree. In my view the “public issue” prong of the statute should be read to require impact on the public weal or the body politic, but the courts have instead ruled that the public visibility of the works of media companies is enough to satisfy this prong. Apparently the judge in the Sivero case adopted this standard and agreed with Fox on this point as well. The court having determined that Sivero’s claim fell within the scope of the anti-SLAPP statute, the burden shifted to Sivero to show that he would probably prevail. In other words, prior to the period of “discovery,” where one obtains the other side’s documents and questions their witnesses, Sivero had to prove his case to the judge. He failed. Sivero not only lost his opportunity to try his case to a jury, but he will face a motion to have Fox’s attorneys’ fees imposed against him, likely a very substantial sum.
The California law books are now stuffed with reports on the results of anti-SLAPP practice. If I represent media companies, I file anti-SLAPP motions every chance I get. If I consult with a potential client who has a claim against a media company, I routinely now advise them that their claim could be met by an anti-SLAPP motion and an award of attorneys’ fees if they lose.
Conceptually, I don’t agree that media companies need a special procedure to seek dismissal of claims on the merits without trial, simply because their product is in the public eye. This is the result both of the broad wording in Section 425.16 and the court’s reduction of the “public issue” requirement to an “enquiring minds want to know” standard. (See National Enquirer.) However, unless and until the Legislature reconsiders the special motion to strike or the courts adopt a stricter reading of “public issue,” anti-SLAPP motions will be argued up and down the hallways of California courthouses.