What to do about the anti-SLAPP catchall?

California's anti-SLAPP statute applies to "any act of [defendant] in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue." Code of Civil Procedure Section 425.16(b)(1). But instead of parsing that text or asking whether the asserted conduct is objectively protected by the First Amendment, courts look to the definition in subdivision (e), which defines four categories of acts "in furtherance." See Navellier v. Sletten, 29 Cal. 4th 82, 94 (2002).

The first three subsections - addressing written or oral statements or writings to government bodies, in connection with issues before government bodies, and in public fora on issues of public interest - have not been that hard to apply. But the fourth "catchall" category - subdivision (e)(4)'s application to "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest" has proven difficult in application.

Literally, subdivision (e)(4) applies to (1) any conduct; (2) in furtherance of certain First Amendment rights; (3) that is in connection with a public issue. Reading that language - along with Navellier's admonition that courts should not read a "proof-of-validity requirement into the operative sections of the statute" - some courts have have read subdivision (e)(4) to apply to any conduct cast as "helping" First Amendment-protected activity, regardless of how clearly it is that such conduct is would not, in fact, be constitutionally protected, so long as a public issue is involved. For instance, subdivision (e)(4) has been read to apply to age discrimination in the hiring of newscasters, Hunter v. CBS Broad., Inc., 221 Cal. App. 4th 1510, 1526 (2013), sex discrimination in the assigning of lawyers, Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 271 (2011), cybersquatting in connection with a political campaign, Collier v. Harris, 240 Cal. App. 4th 41, 53 (2015), and fomenting baseless bankruptcy litigation to interfere with an SEC investigation, Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal. App. 4th 658, 672 (2005). Given that the result of finding that a claim arises from protected activity, is a requirement that plaintiff prove up its claims without the benefit of discovery, these cases have often resulted in early dismissal of claims.

On the other hand, some courts have declined to apply subdivision (e)(4) to other conduct that allegedly "helps" or "furthers" other First Amendment protected activity, on the grounds that these "acts" themselves are not "protected." These courts have, for instance, denied application of subdivision (e)(4) to paying bribes to obtain evidence for use in a publicity campaign and an administrative proceeding, Renewable Res. Coal., Inc. v. Pebble Mines Corp., 218 Cal. App. 4th 384, 398 (2013), and computer hacking or wiretapping to further litigation, Gerbosi v. Gaims, Weil, W. & Epstein, LLP, 193 Cal. App. 4th 435, 447 (2011); Malin v. Singer, 217 Cal. App. 4th 1283, 1303 (2013). Generally these cases rest the rationale that, "helping" aside, the anti-SLAPP statute "was not enacted to protect" these types of activity.

At the end of the day, however, neither line of cases provides a cogent textual reason why (e)(4) should apply to some "in furtherance" conduct, but not other acts. If sex discrimination "helps" a television network in connection with reporting the weather, why doesn't wiretapping "help" a law firm engaged in high-profile litigation? They offer no satisfying way to draw a line.

Fundamentally, their unrecognized problem is that subdivision (e)(4)'s "catchall" is not like subdivisions (e)(1)-(3). The California Supreme Court recently explained that the categories in subsection subdivision (e) "provide objective guidelines that lend themselves to adjudication on pretrial motion." City of Montebello v. Vasquez, 1 Cal. 5th 409, 422 (2016). So far as subdivisions (e)(1)-(3) go, the types of acts they describe - written and oral forms of government petitioning and public speech - are readily recognizable by reference only to the statutory standard, completely independently of whether that conduct is actually constitutionally protected.

But that isn't true of subdivision (e)(4), which defines subdivision (b)(1)'s "act ... in furtherance of the person's right of petition or free speech" as "any other conduct in furtherance of" those rights. Indeed, the definition is essentially tautological. Unlike subdivisions (e)(1)-(3), subdivision (e)(4)'s language does not lend itself to an intrinsic standard that can be meaningfully applied without leading to completely anomalous results.

The only way out of the trap is to imbue subdivision (e)(4) with the power to ask whether it is plausible that the activity at hand is actually and legitimately in furtherance of First Amendment activity - an analysis that is perfectly consistent with the text of the statute. That is, while subdivision (b)(1)'s reference to "any act ... in furtherance" is specifically defined in the four categories, to make any sense, subdivision (e)(4)'s seemingly duplicative reference to "other conduct in furtherance" must by its very nature refer to some standard extrinsic to Section 425.16.

Nonetheless, given Navellier's "no proof-of-validity" admonition and Section 425.16(a)'s directive for a broad interpretation, it would go too far in applying subdivision (e)(4) to require a moving defendant to prove that the claim arises from conduct that is actually First-Amendment protected. But it should not be very difficult to apply this standard to exclude from "protected activity" conduct that is clearly not First Amendment protected. Things like sex and age discrimination, wiretapping, bribery, and all sorts of other nefarious conduct that, while potentially describable in some facile sense as "helping" expressive conduct like making movies or trying cases, would never be subject to a legitimate First-Amendment based defense on the merits.

To refine a bit, to satisfy subdivision (e)(4), a defendant would have to show that the gravamen of the relevant claim: (1) is subject to a legally plausible free speech or petitioning-related defense, even were plaintiff to prove each element of liability; or (2) includes within its own terms elements that accommodate these interests. The first category would include claims potentially subject to the Civil Code Section 47(b) litigation privilege or the Noerr-Pennington doctrine, as well as other claims that attempt to attach liability to core First Amendment-protected activity like newsgathering and political or artistic expression. The second would include claims such as some forms of defamation or the right to privacy, where First Amendment protections are built into the very elements of the claim. And of course, to remain faithful to the text, whatever conduct is entailed must also be "in connection with a public issue or an issue of public interest."

Admittedly, none of the published cases have parsed subdivision (e)(4) in this finely. But Justice Goodwin Liu's dissent in the recent City of Montebello case touched on the point somewhat. The question there was whether allegedly corrupt legislative voting is "protected activity." The majority said it was, under subdivisions (e)(1) or (2). But Liu reasoned that a legislator's vote is not a written or oral statement or writing, and thus can't literally fall within subdivisions (e)(1)-(3). That, according to Liu, left only the question of whether (e)(4) protected the conduct. The U.S. Supreme Court, however, ruled in 2011 that legislative voting is categorically not protected by the First Amendment. See Nev. Comm'n on Ethics v. Carrigan, 564 U.S. 117 (2011). Given Carrigan, Liu would have ruled that "[a] legislator's vote therefore cannot be understood as an act 'in furtherance of' the constitutional right of free speech within the meaning of section 425.16" because that kind of conduct is simply not protected First Amendment activity.

In any event, the issue is more than ripe and the appropriate vehicle is presently pending review. Recently in Wilson v. Cable News Network, Inc., 2016 DJDAR 12285 (Cal. Ct. App. Dec. 13, 2016), the 2nd District Court of Appeal issued a split decision on the interpretation of (e)(4). Without getting into the textual analysis described above, the majority held that cases like Hunter and Tuszynska misread Navellier in making a defendant's unlawful discriminatory motive "irrelevant" to the anti-SLAPP analysis in employment cases, so long as the discrimination "helps" an employer's first-amendment related business. On the other hand, the dissent accused the majority of importing the "proof-of-validity requirement" disclaimed by Navellier.