The Vexing Nature of California’s Attempt to Protect Free Speech Through its Anti-SLAPP Statute

Sometimes when a lawmaking body adopts a new rule that seeks to promote the protection of civil liberties, the effort backfires. That might be happening with a California statute, designed to reduce so-called SLAPP lawsuits—“Strategic Lawsuits Against Public Participation”—enacted by the state legislature over two decades ago. The anti-SLAPP law (as it is called) was recently invoked by the University of California to try to get rid of a sexual harassment suit brought against it by a woman medical resident at the UC Davis Medical Center. Although the state appellate court (rightly) rejected the UC’s invocation of the statute, the case highlights the potential boomerang effect the statute’s words themselves create.

Here’s what the statute says: “A [claim] 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 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.”

To paraphrase, when you sue someone based on the his or her exercise of free speech in connection with a public issue, your claim shall be quickly dismissed (prior to full investigation of the facts and evidence) unless the court thinks you have a particularly strong case. (The Anti-SLAPP statute also entitles successful defendants to attorney’s fees, something most successful defendants don’t have.)

On its face, the statute seems sensible. If people are engaging in political expression, they shouldn’t be burdened by the possibility they may be sued over their speech activities unless the plaintiff can show a strong claim. Indeed, the possibility that they may have to endure a lawsuit (even one they eventually win) might deter—or “chill”—them from engaging in political expression in the first place. And that would be bad for society.

A difficulty arises, however, because “an act in furtherance of [a] person’s right of free speech” (the phrase in the statute) is very broad, and many evil things—like racial or gender discrimination or harassment—are done via speech. (“You’re fired because you are black” is speech even as it is also an act of despicable employment discrimination.) And if a defendant who is accused of such evil things can quickly have the case against it dismissed under the anti-SLAPP statute (because the evil acts made use of speech), oftentimes a plaintiff who may have a valid claim will not be able to prevail because s/he will not have had enough of an opportunity to gather the evidence (through legal discovery devices like depositions and document requests) needed to prove the case.

That is arguably what the UC tried to accomplish in a case decided by the California Court of Appeal two weeks ago, Nam v. UC Regents. The plaintiff in Nam was a medical resident in the Anesthesiology Department at the UC Davis Medical Center who was disciplined repeatedly and ultimately removed from the program. She alleged that the discipline and removal were in retaliation for her having resisted sexual overtures by a supervisor and having complained about improper medical procedures that were hurting patients. Accordingly, she filed a complaint in state court alleging illegal “retaliation, discrimination, sexual harassment, wrongful termination, violations of the Business and Professions Code, and breach of contract.” For its part, the UC contended that she was an incompetent and disruptive employee, who was disciplined and terminated from the program for cause because she could not perform essential job functions and should not be allowed to treat patients.

But in addition to trying to defend its case on the merits, the UC also sought to take advantage of the special procedures applicable to so-called SLAPP suits, and so filed a motion to strike (or eliminate) the case under the Anti-SLAPP law. How, one might ask, does the Anti-SLAPP law even apply to the UC’s alleged actions? After all, it was the plaintiff, Ms. Nam, who claimed to be a whistleblower, shedding light on improper procedures at the public medical center.

The UC argued that the things on its end that form the basis of Ms. Nam’s claim—“the oral and written complaints it received [from other doctors at the Medical Center] about her performance, the various written warnings it provided her, the results of the ensuing investigations, and her written notice of termination”—were all acts of expression that are covered and protected under the Anti-SLAPP statute.

The Court of Appeal rightly rejected the UC’s claims here—saying that to embrace the UC’s position “in effect, would [be to] subject most harassment and retaliation claims against public entities to an anti-SLAPP motion to strike.” As the court elaborated:

To conclude otherwise would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike. Any employer who initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits. Such a result is at odds with the purpose of the anti-SLAPP law, which was designed to ferret out meritless lawsuits intended to quell the free exercise of First Amendment rights, not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right to petition for fear of an onerous attorney fee award.

Although the court reached the right result, it could not easily explain why, under the words of the Anti-SLAPP statute and some earlier precedents from other California Court of Appeal panels, the UC’s argument was legally flawed. The key problem is that discrimination and harassment are usually accomplished via speech acts. So if all speech activities are specially protected from being the basis of a legal claim, then that would include even speech activities that are illegal and amount to discriminatory conduct. (Notice that the most famous effort to provide special procedural protection from litigation and liability to people who engage in political speech, the U.S. Supreme Court’s announcement in New York Times v. Sullivan of an “actual malice” standard for defamation cases when the plaintiff is a public figure, does not present this problem because the protection is limited to defamation cases—where speech and speech only is the basis of the plaintiff’s claim.)

One superficially tempting solution for the Nam court might have been to try to argue that the under the text of Anti-SLAPP law (in particular the word “right” in “right of free speech”) only lawful speech activities are protected, and the speech actions that Nam alleged—discriminatory statements and procedures by the UC—are not constitutionally protected. But that textual solution doesn’t really work, because every complaint alleges that the defendant is guilty of illegality (and not protected by any “right”), so if a plaintiff’s complaint states a legal claim, then by definition the Anti-SLAPP statute would never provide any protection to anyone—clearly not what the state legislature intended.

Perhaps what is needed is for the California Supreme Court (or legislature) to draw a line between pure speech—which the Anti-SLAPP statute seeks to protect and as to which the statute imposes a higher burden on plaintiffs—and speech that is entwined with conduct, or speech that is undertaken not primarily for expressive purposes, but instead to accomplish business objectives. Under such an approach, employment terminations and discipline of employees—even if accomplished through speech—would not be covered by the statute. The speech–conduct line in First Amendment jurisprudence can be dicey, but it has often been used by the U.S. Supreme Court to explain why actions that take the form of speech but that are carried out for non-expressive purposes (such as a law school’s decisions about whom to allow on campus to interview students) are not core First Amendment activities.

Another possibility that was available to but not explored by the Nam court involves the public nature of the defendant there, the University of California. Even if employer discipline and termination processes can be considered speech (and even if they could in some circumstances be covered by the Anti-SLAPP statute), it is hard for me to see that speech engaged in by the University of California would be speech in furtherance of the UC’s “right of petition or free speech under the United States Constitution or the California Constitution.” I reach this conclusion because I don’t think of state government entities themselves having free speech rights (even if individual public employees may have speech rights under some circumstances to comment on public affairs). Importantly, the defendant in the Nam case was not the individual people who complained about Ms. Nam, but her public employer itself—the University of California and its governing board. There may be some case law in California saying that public entities do enjoy state constitutional rights of free speech, but I would revisit any such cases or rewrite the Anti-SLAPP statute to exclude coverage for government entities themselves. Indeed, the very SLAPP idea itself was, according to some sources, originally defined (by the law professors who coined the term) in such a way as to be limited to private speakers: a SLAPP action is “a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance.”

This might have been a way of deflecting the UC’s attempt in Nam, but the larger problems of applying the Anti-SLAPP law to discrimination and harassment lawsuits need to be addressed by the California Supreme Court, legislature, or both.