Anti-SLAPP Law Has Its Limits: Cyber-Bullying Isn’t "Public Participation"

Here (also reported here) is a case which, I believe, shows that Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws generally work, in that they prevent abusive, meritless defamation lawsuits which aren’t meant to vindicate any right, but simply to harass and intimidate the defendant. Conversely, a good Anti-SLAPP system will still allow any plaintiff (a large corporation or otherwise) to protect their rights when they have actually been defamed, and the speech in question clearly has no social value.

In an opinion (contains profanity) released on March 15, 2010 a California appeals court held that California’s Anti-SLAPP statute (which is considered to be one of the strongest in the country), does not warrant the dismissal of a lawsuit alleging defamation, invasion of privacy, and intentional infliction of emotional distress stemming out of hateful and threatening messages left on the plaintiff’s personal website.

This makes perfect sense. When the California legislature created the Anti-SLAPP law, it was designed to protect people who actually had something important to say, such as “X Corp. is polluting the environment” or “Y Corp. engages in employment discrimination,” by preventing the subjects of those statements from using the courts to stifle their speech by burying the speakers in meritless defamation lawsuits. Essentially, to invoke the SLAPP law, the defendants have to have been speaking about a matter of real public concern.

It should be clear to just about anyone that going onto a person’s website, and flooding his guestbook with dozens of hateful, bigoted, and simply evil messages (some choice examples are reproduced in the opinion above) that really have nothing to do with anything would give rise to liability under California’s hate crime and cyber-bullying laws, as well as the common law torts of defamation and intentional infliction of emotional distress.

While the lawyers of these defendants can’t be blamed for doing everything within their power to represent their clients’ interests, I can’t help but wonder what they were thinking when they were writing their Anti-SLAPP motions for their respective clients. Could a person really believe that slurs and threats of violence, even if they were “jokes” as the defendants claimed, they clearly didn’t involve matters of public concern. Remember, SLAPP laws are designed to curtail lawsuits directed at public participation.

Furthermore, a lawsuit brought by an individual teenager and his family alleging defamation and infliction of emotional distress for hateful messages on his website doesn’t sound like the type of lawsuit that Anti-SLAPP laws are meant to curtail. We aren’t talking about a deep-pocketed corporation who is simply using the legal system to shut out competition or dissent. Rather, we’re dealing with a teenager who could very well have been traumatized by pointlessly hateful messages directed at him.

And while the victim in this case was not a large corporation, I should take this opportunity to stress that Anti-SLAPP laws are not meant to impinge upon the rights of big corporations, and wealthy individuals. If they are defamed, they have every legal right to attempt to vindicate their reputation by filing a lawsuit for libel or slander, the same as the rest of us. And if they have an advantage over the defendant because they have more money to hire more lawyers, that’s sad for the defendant, but, right or wrong, it’s the system we currently have.

What they can’t do, however, is use their massive legal departments and the giant law firms they have on retainer to bury people in paperwork and court fees, just because they said something that the corporation doesn’t like.

By: Rusty Shackleford