Pushing the SLAPP Envelope


Candidates, governments and a guy named Milken use the anti-legal-bully


SLAPP suits bully public-spirited citizens into silence by burying them in the bowels of the courthouse for an indefinite and expensive period of time. That's where anti-SLAPP protections like Sec. 425.16 of the California Code of Civil Procedure come in.


He traces the problem to the use of the anti-SLAPP statute to immunize non-political speech in a 1996 case in which Scientologists sued a man in an effort to vacate a multimillion-dollar personal injury judgment he had won against them.

California's 2d District Court of Appeal reckoned that the Scientologist suit was a SLAPP and that protections apply to any act in the furtherance of the right of petition, regardless of subject matter. The man's conduct didn't need to show intrinsic political significance, and it qualified merely by concerning issues under court consideration. Church of Scientology of California v. Wollersheim , 42 Cal.App. 4th 628.

In January, the California Supreme Court affirmed the broad Wollersheim reading in Briggs v. Eden Council for Hope and Opportunity , 99 C.D.O.S. 554. Only a dissent by Justice Marvin Baxter suggested that a drastic pretrial remedy was being made too widely available.

The single person most responsible for the course of SLAPP protection in California is Oakland lawyer Mark Goldowitz, who represented Mr. Wollersheim and who created and maintains the California Anti-SLAPP Project. Mr. Goldowitz concedes that it is "theoretically" possible to take SLAPP too far. But he is quick to add that there are built-in safeguards. "Trial judges have a two-part test," he notes. "Once the moving party makes a prima facie showing that the complained-of comments or conduct are within the protections of the anti-SLAPP statute, that's not the end of it. The burden shifts to the plaintiff to show the suit has any likelihood of success. Only meritless suits are struck."


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