We just received some wonderful amicus support in an important anti-SLAPP case and I wanted to highlight the issue and amicus briefs.
This case presents an important question for political activists and organizations: if one protester does something illegal at a protest, can a party claiming injury from that illegal action sue everyone at the protest and strip them of their rights under the anti-SLAPP statute?
The anti-SLAPP statute does not protect activity that is illegal. (Flatley v. Mauro (2006) 39 Cal.4th 299, 316.) But if a plaintiff alleges a conspiracy to engage in illegal activity, does it matter what facts the plaintiff pleads against the alleged conspirator to show the conspiracy? Put another way, when a plaintiff asserts a claim on a conspiracy theory, which “acts” are considered to determine whether the anti-SLAPP statute applies to the alleged conspirator: the acts of the party it alleges the moving defendant conspired with, or the moving defendant’s own acts evidencing his participation in the conspiracy?
Imagine a pro-choice activist assaults a pro-life activist protesting outside a Planned Parenthood clinic. The assaulted pro-life activist sees an opportunity to take a swipe at Planned Parenthood. So he sues Planned Parenthood alleging a conspiracy with his assailant. His only evidence against Planned Parenthood is that it shares a mission with his assailants and uses similar slogans and rhetoric.
If Planned Parenthood filed an anti-SLAPP motion, would the statute apply? If the statute looks to the plaintiff’s allegations against Planned Parenthood itself, the statute would seem to apply—the plaintiff’s claims against the organization are based on its speech (slogans and rhetoric) on a matter of public interest. But if the statute looks only to the acts of the party Planned Parenthood is alleged to have conspired with, the statute wouldn’t apply—the pro-choice activist’s assault is illegal.
In my case, animal rights group Direct Action Everywhere (DxE) organized against Golden Gate Fields, a horse racing track in the Bay Area. Golden Gate Fields kills a lot of horses. In 2020 alone, as most of the country was staying home to alleviate a global pandemic, Golden Gate kept racing horses—and at least 26 of them died there. Twenty horses died there the year before.
So DxE authored a petition to the cities of Berkeley and Albany asking the cities to shut the track down. It gathered more than 30,000 signatures.
Then, while some members of a local chapter of DxE protested outside the track, four activists committed civil disobedience by going onto the track and locking down. The track cancelled some races. The activists were arrested and the track sued them for trespass.
But the track also sued DxE. And all it alleged against DxE was that it has a petition on its website seeking to shut the track down, that it organizes protests on the public sidewalk outside the track, and that they gave live commentary on Facebook cheering on the people committing the civil disobedience. The track alleges DxE had a conspiracy with the activists who locked down. But the only facts they allege to show the conspiracy are political speech—protesting, petitioning, social media organizing, and so on.
So we filed an anti-SLAPP motion because the track sued DxE for its speech and the First Amendment prevents imposing liability on a political organization for the acts of others unless the organization ratifies, directs, or authorizes the illegal activity.
But the trial court found that because the activists who did the civil disobedience committed a crime, the anti-SLAPP statute couldn’t apply to DxE because the track alleged DxE was vicariously liable for the crime. It didn’t matter that there were no facts to show the vicarious liability; merely alleging it was enough.
We appealed, contending this would cripple associational rights under the anti-SLAPP. If just alleging vicarious or conspiracy liability can defeat the statute, then opportunistic SLAPP plaintiffs can sue anyone as soon as one person breaks the law. A shop owner who had a rock thrown through his window during a Black Lives Matter protest could sue everyone who attended the protest, the chapter that organized it, the reporters and newspapers who reported on it, and the city official who issued the permit. None of them could invoke the anti-SLAPP statute.
We’ve received some excellent support from organizations that recognize the threat posed by this legal theory. The First Amendment Coalition, together with the ACLU of Northern California, California News Publishers Association, and Californians Aware, filed a brief detailing the threat that loose vicarious liability allegations can have on First Amendment rights in the context of political organizing. And the Climate Defense Project, together with the Sierra Club, Amazon Watch, the Civil Liberties Defense Center, and others, detailed the history of the statute and how it was meant to screen out exactly these types of lawsuits.
All of the briefing can be found here:
Amicus from First Amendment Coalition, ACLU of Northern California, and others
Amicus from Climate Defense Project, Sierra Club, and others