SLAPP suits — Strategic Lawsuits Against Public Participation — are designed to bankrupt critics into silence. California gives you a powerful early exit. Here's how it works.
A SLAPP suit is a lawsuit filed not to win in court, but to drain the target's money and time. A corporation sues a community activist for defamation over a critical blog post. A landlord sues a tenant for writing a negative review. A developer sues residents who testified against a zoning permit. The goal is the same: make protected speech so expensive that people stop speaking.
California recognized this problem early and passed one of the strongest anti-SLAPP statutes in the country: Code of Civil Procedure § 425.16. The law lets defendants file a special motion to strike a SLAPP suit in its early stages — before the expensive discovery phase begins. If you win the motion, the case is dismissed and the plaintiff pays your attorney fees.
The fee-shifting provision is what makes California's law have teeth. Even if a corporation can afford to lose a SLAPP motion, having to pay the defendant's legal fees disincentivizes filing meritless suits in the first place. Filing a SLAPP in California is a high-stakes gamble for the plaintiff.
A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
The statute protects four categories of protected activity. Courts interpret these categories broadly because the legislature intended the law to function as a shield for robust public participation.
Testimony at a city council hearing. Comments submitted to a state agency. Statements made in court proceedings. All of these are protected — even if false, with limited exceptions for statements made with actual malice toward private figures.
Online reviews of businesses, public commentary about neighborhood development projects, criticism of public figures and institutions. Courts have held "public interest" broadly — it doesn't have to be a matter of national importance, just something the community cares about.
Distributing leaflets, organizing boycotts, filing complaints with government agencies, writing letters to newspapers — actions taken to exercise First Amendment rights in connection with a public issue are protected from SLAPP suits.
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Take the Free Assessment →Communicating with elected officials about pending legislation, writing to a planning commission about a permit application, contacting a school board about a curriculum decision — all protected, even if ultimately inaccurate.
When you file an anti-SLAPP motion, the court applies a two-part test. The burden shifts at each step.
Step 1 — the defendant's burden: You must show that the claim arises from protected activity — one of the four categories above. This is generally not a high bar. If you're being sued for something you said or wrote in connection with a public issue, you usually clear this threshold. If you do, the burden shifts to the plaintiff.
Step 2 — the plaintiff's burden: The plaintiff must demonstrate a probability of prevailing on the merits. They need to present admissible evidence establishing a legally sufficient claim and a prima facie factual basis to support it. This is where most SLAPP suits die. Without real evidence of defamation, intentional interference, or whatever the underlying claim is, the plaintiff can't clear this bar.
If the motion is granted, the case is dismissed and the court must award attorney fees and costs to the defendant. This fee shifting is mandatory under the statute — the trial court doesn't have discretion to deny it once the motion succeeds.
Filing an anti-SLAPP motion automatically stays all discovery in the case until the motion is decided. This prevents plaintiffs from using the lawsuit as a fishing expedition into the defendant's finances, communications, and records — one of the primary tactical goals of SLAPP litigation.
The California Supreme Court established the foundational framework for anti-SLAPP analysis, clarifying that the defendant bears only the initial burden of showing the claim arises from protected activity — not that the activity itself was protected from liability. This distinction matters: even speech that might be actionable (like actual defamation) gets anti-SLAPP review; the question at step one is whether the lawsuit is targeting protected activity, not whether the speech was legally permissible.
The Court also held that the legislature intended § 425.16 to be construed broadly, in favor of defendants seeking to invoke its protections. When in doubt, courts lean toward applying the anti-SLAPP framework.
The California Supreme Court in Flatley v. Mauro (2006) established a narrow exception: a defendant cannot invoke anti-SLAPP protections when their underlying conduct is illegal as a matter of law — such as extortion. However, this exception is intentionally narrow. Courts cannot resolve disputed facts at the anti-SLAPP stage; illegality must be clear from undisputed evidence or the defendant's own admissions. Mere allegations of wrongdoing are not enough to strip a defendant of anti-SLAPP protection.
A journalist brought a racial discrimination claim against CNN after being fired. CNN filed an anti-SLAPP motion, arguing the editorial decisions underlying the termination were protected activity. The California Supreme Court ultimately held that employment decisions by media companies can implicate anti-SLAPP protections when they involve editorial and newsgathering functions — but the plaintiff must be given the opportunity to show the employment decisions were made for impermissible discriminatory reasons unrelated to protected activity.
This case illustrates that anti-SLAPP is not a blanket immunity for media defendants, but it does extend to editorial processes that are inherently expressive and connected to public issues.
"The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability."
— California Supreme CourtOur free assessment helps identify whether you may have a First Amendment or anti-SLAPP defense. Takes a few minutes. No signup required.
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