By Sudeep T.R. – Senior Associate, Legal
When a customer posts a negative review, residents oppose a proposed development at a city council meeting, a journalist reports on a public controversy, or a former employee raises concerns about workplace practices, the person or business facing criticism may respond with a lawsuit intended to pressure the speaker to remove the content, retract the statement, settle the dispute, or remain silent.
Even a weak lawsuit can be costly, stressful, and time-consuming to defend. The legal process itself may pressure the speaker to remove content, retract statements, settle the case, or remain silent. California enacted its anti-SLAPP law to protect against this misuse of litigation.
What Is a SLAPP?
SLAPP stands for Strategic Lawsuit Against Public Participation.
A SLAPP claim is generally a lawsuit based on speech, advocacy, reporting, petitioning, or participation in a public issue. Common SLAPP claims include:
- Defamation
- Interference with business relationships
- Invasion of privacy
- Emotional distress
- Breach of contract
Even though there is a label placed on the claim, it does not decide whether the law applies. Here, the courts look at the actual conduct related to the issues that allegedly caused the harm.
California law also does not require the defendant to prove that the plaintiff intended to silence speech. In Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 [124 Cal.Rptr.2d 507, 52 P.3d 685], the California Supreme Court held that a defendant need not prove the plaintiff’s subjective intent. The focus is on the nature of the claim and the conduct behind it.
Why California Created the Anti-SLAPP Law?
California Code of Civil Procedure section 425.16 was enacted in response to such lawsuits that could chill free speech and the right to petition the government.
The Legislature recognized that ordinary court procedures may not always provide enough protection. A case may continue for months or years before trial, creating heavy legal costs long before the court decides whether the claim is valid.
The anti-SLAPP law allows certain claims to be tested near the beginning of the case.
How an Anti-SLAPP Motion Works
The court follows a two-step process.
Step One: Is the Claim Based on Protected Activity?
The defendant must show that the claim arises from activity protected by the statute.
Protected activity may include:
- Statements made in court, legislative, executive, or other official proceedings
- Statements connected to an issue being considered by a government body
- Statements made in a public forum about an issue of public interest
- Other conduct supporting free speech or petition rights on public issues
The court does not simply ask whether speech appears somewhere in the background of the case.
In Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 [217 Cal.Rptr.3d 130, 393 P.3d 905], the California Supreme Court explained that courts must identify the acts that actually supply the elements of the plaintiff’s claim. In simple terms, the question is: What did the defendant allegedly do that created legal liability?
A single cause of action may also contain both protected and unprotected conduct. In Baral v. Schnitt (2016) 1 Cal.5th 376 [205 Cal.Rptr.3d 475, 376 P.3d 604], the court explained that judges may need to examine each alleged act separately rather than treating the entire claim as one indivisible issue.
Step Two: Does the Claim Have Minimal Merit?
If the defendant satisfies step one, the burden shifts to the plaintiff.
The plaintiff does not have to prove the entire case at this early stage. However, allegations alone are not enough. The plaintiff must present a legally valid claim supported by evidence that could support a judgment in plaintiff’s favor. This is often called the minimal merit standard.
In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 [243 Cal.Rptr.3d 880, 434 P.3d 1152], the California Supreme Court discussed the type of evidence a court may consider at this stage.
The judge generally does not decide which side is more believable. Instead, the judge asks whether the plaintiff has presented enough legally usable evidence to allow the claim to continue.
Why the Motion Is PowerfulDefamation
An anti-SLAPP motion can change the course of a case quickly.
Important consequences include:
- The motion usually must be filed within 60 days after service of the complaint, although a court may allow a later filing.
- Discovery is generally paused once the motion is filed.
- A court may permit limited discovery for good cause.
- The court may strike all or part of a claim.
- A successful defendant is generally entitled to reasonable attorney fees and costs.
- A plaintiff who defeats the motion usually receives fees only if the motion was frivolous or filed solely to cause delay.
- An order granting or denying the motion is generally immediately appealable.
These rules make early analysis important.
Common Examples
- Online Reviews
A customer posts a public review criticizing a business. The business sues for defamation.
The court may consider:
- Whether the review appeared in a public forum
- Whether it concerned an issue of public interest
- Whether the statements were facts or opinions
- Whether the statements were false
- Whether the business can show legally recognized harm
A statement such as “the service was terrible” is different from a factual accusation of fraud or criminal conduct.
Public Meetings
Residents speak against a development project during a city council meeting. The developer later sues them for interfering with business relationships.
Speech before a government body, or speech connected to an issue being considered by that body, is at the heart of protected petitioning activity.
Workplace Disputes
A former employee publicly discussed alleged workplace misconduct. The employer files claims for defamation and breach of confidentiality.
The result may depend on:
- What was said
- Where it was said
- Whether the issue was of public interest
- Whether the statements were true or false
- Whether the employee had confidentiality obligations
What Attorneys Examine Immediately
When a case may involve anti-SLAPP issues, counsel asks:
- What exact acts support each element of the claim?
- Do those acts fall within a protected category?
- Is the protected speech the basis of liability, or merely background?
- Does the claim combine protected and unprotected conduct?
- What evidence supports or defeats the claim?
- Has the filing deadline started?
- Is limited discovery needed?
- Do privilege, First Amendment, or other defenses apply?
- What attorney’s fee and appeal risks exist?
The meaning of “public interest” can also be important. In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 [246 Cal.Rptr.3d 591, 439 P.3d 1156], the California Supreme Court explained that there must be a meaningful connection between the challenged speech and the public issue.
What the Law Does and Does Not Protect
California’s anti-SLAPP law does not give speakers automatic immunity.
It does not protect:
- False factual statements
- Unlawful threats
- Contract violations
- Fraud
- Other legally actionable conduct
The law instead provides early review of claims based on protected speech or by a petition.
Its purpose is to prevent the cost of litigation from becoming a punishment by itself, while still allowing claims with legal and factual merit to proceed.
Attorneys handling defamation, media, employment, consumer-review, business-tort, or public-advocacy disputes, would evaluate anti-SLAPP issues at the beginning of the case. Early analysis can affect pleading strategy, evidence, discovery, attorney’s fees, settlement decisions, and appeal rights.
This article is meant for general information. A professional review of the current statute, relevant exemptions, procedural rules, and later treatment of the cited authorities is mandatory before relying on them for any matter.
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