Tips for Defending Against a Defamation Lawsuit: the anti-SLAPP Defense

Posted about 2 years ago. Applies to California, 3 helpful votes



California has a strong public policy protecting free speech.

California Code of Civil Procedure section 425.16 is powerful medicine for defense against a lawsuit based on a police report or litigation, or allegedly defamatory speech (written, posted, or spoken). This is the "special motion to strike," or anti-SLAPP defense. SLAPP = strategic lawsuits against public participation.


Who can claim the "anti-SLAPP" defense? FIRST ELEMENT

A defendant must be able to show that the speech is "protected" because it involves: 1) pre-litigation (including police reports and demand letters) or actual litigation efforts , OR 2) any matter of "public interest." The "public interest" is BROADLY defined. Think of whether the information might be interesting to readers of a newspaper. If so, especially if it might spark puiblic debate, it may be protected speech.


Who can claim the "anti-SLAPP" defense? SECOND ELEMENT

If the defendant has met his/her burden on the FIRST ELEMENT, the burden shifts to the plaintiff. The defendant must show that the plaintiff cannot meet the burden to show that s/he has a "probability of prevailing." This generally requires formal evidence by both sides (e.g., declarations under penalty of perjury, evidence that has been properly authenticated). The plaintiff must respond with similar evidence, but the burden of proof is on the plaintiff to rebut defendant's evidence. In defendant's reply, the defendant can argue that the plaintiff's opposition evidence is inadmissible or insufficient.


What's the Prize: An award of attorney fees in DEFENDANT's favor.

If your attorney knows his/her stuff, and you can meet the above elements, assuming Plaintiff put in the motion that an order for fees is also sought, a California court will award your attorney his/her reasonable attorney fees for the defense and the lawsuit (at least the anti-SLAPP claims of defamation/emotional distress related to protected speech) will be dismissed.


What's the downside? Very little.

If your attorney doesn't win the anti-SLAPP motion -- the order is IMMEDIATELY appealable. A win on appeal means attorney fees for the motion AND the appeal. Meanwhile, no discovery on claims related to the allegedly protected speech is permissible (that's good for the defendant). Can plaintiff win his/her fees if the anti-SLAPP motion is unsuccessful? Almost NEVER. A showing must be made that the anti-SLAPP motion is "frivolous," (i.e, had no basis whatsoever), and/or designed only to delay.


In conclusion: If you are sued for defamation in California ...

(or emotional distress based on your speech, whether oral or written) be sure you hire an attorney who understands the anti-SLAPP defense.

Additional Resources

My website

My article on the Borat litigation

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