Recent Anti-SLAPP Developments

By Eric Goldman

As you may recall, I have endorsed HR 4364, the Proposed Federal Anti-SLAPP Bill. This blog post catches up on some recent anti-SLAPP developments both in and out of the courtroom.

First, many of you probably saw the NY Times article from the beginning of June entitled Venting Online, Consumers Can Find Themselves in Court. The article didn’t break a lot of new ground, but I thought it did a great job calling attention to and framing the issues.

Second, HR 4364 now has three co-sponsors: Rep. Steve Cohen (D-TN9) (the bill’s author), Rep. Charles Gonzalez (D-TX20) and, most recently, Fortney “Pete” Stark (D-CA13). Kudos to these visionary legislators! I hope other organizations and legislators will join the effort.

Third, a few words about three recent California anti-SLAPP cases have caught my attention (at some point I’ll also blog separately about the DC v. RR case that’s been sitting in my in-box for months):

Gibson v. Swingle, 2010 WL 2136655 (Cal. App. Ct. May 28, 2010)

Gibson is an attorney. The court recounts his travails:

Swingle submitted a declaration in which he admitted having posted messages on Craigslist.org accusing Gibson of breaking laws, using illegal drugs, harassing and stalking people, frequently using profanity, being mentally ill, and threatening people with violence. Swingle admitted he created a blog through Google Inc. [www.richardhilarygibson.blogspot.com, now defunct] and posted messages on it accusing Gibson of offering a reward for the murder of someone, threatening to blow up someone’s car, threatening the image of then-presidential candidate Barack Obama, using illegal drugs, stalking people, expressing contempt for the Bible, making racist remarks directed at Mexican-Americans, and being a “perv.” Swingle said he had “sent e-mails out regarding Mr. Gibson.”

A little more background on the situation. Gibson initially sued Doe defendants but later named Swingle and his trust fund as defendants. Swingle countersued Gibson and then filed an anti-SLAPP motion. The appellate court rejects the anti-SLAPP motion because Swingle’s speech lacks sufficient public interest. As the court says in a fairly abbreviated analysis, “the claims are based on Internet posts describing Gibson’s alleged character flaws and his alleged illegal or otherwise improper conduct.”

From my perspective, the court’s conclusion about the lack of public interest seems plainly wrong. An attorney allegedly engaged in illegal activities should almost always qualify as having sufficient public interest. Further, to the extent Swingle was trying to educate potential customers/clients of Gibson, I personally believe that should qualify as a public interest as well. Under the proposed federal anti-SLAPP law, I believe it would.

Navarro v. Cruz, 2010 WL 2183227 (Cal. App. Ct. June 2, 2010)

Navarro runs a placement agency for foreign teachers looking for US teaching jobs. Cruz retained Navarro for placement services, but I’m inferring that didn’t work out. Cruz then allegedly set up a blog, Pinoy Teachers Hub, “alleged to contain false and defamatory statements accusing Navarro and UPI of fraudulent business practices and crimes.” (I say Cruz was allegedly the author because apparently that was a point of contention).

Like the Gibson case, the parties disputed the public interest of the blog. The court concludes that the blog satisfied the standard because:

the blog addressed issues ranging beyond the specific wrongs and breaches claimed to have been suffered by its writer, on issues such as immigrant exploitation, fraud, and substandard housing. These issues would affect and would be of interest to many present and future immigrant teachers-including not just those who had allegedly been victimized, and not even just those who had actually contracted with UPI, but also those who might be considering becoming immigrant teachers through UPI or other such agencies. And the blog expressly sought to rally others to support changes in the claimed practices and in the contractual and other requirements that foreign teachers believed they were forced to accept, and encouraging others “to ‘stand up’ to pursue a common goal” involving an ongoing controversy.

It’s not clear to me how this differs from the Gibson case. In both cases, the published material was designed to educate a vendor’s future customers about why they may want to choose a different vendor. In the Cruz case, it looks like the blog was more overtly activist than the personal griping in the Gibson case. Further, in the Gibson case, there was an undercurrent that the court simply didn’t believe the griper and thus gave his statements less credit. Otherwise, to the extent they are not factually distinguishable, I think this case gets it right and the Gibson case got it wrong.

The trial court awarded over $31k in attorneys’ fees to Cruz. The appellate court remanded to make sure the fee award did not include “fees and costs for the trial court proceedings…not incurred in connection with or necessary to the anti-SLAPP motion.”

Calibra Pictures, Inc. v. Variety, BC 433 320 (Cal. Superior Ct. May 12, 2010)

Calibra produced the movie “Iron Cross.” It also was a Variety magazine advertiser. Perhaps not surprisingly, Calibra was unhappy when Variety published a negative review of Iron Cross in its print and online editions. Surprisingly, Calibra sued Variety for the negative review, and Variety responded with an anti-SLAPP motion. The court says that Variety qualifies as a public forum and the “widespread interest” in the movie, such as high demand for screener DVDs, made the critical review a matter of public interest.

Thus, the burden shifted to Calibra to make a prima facie showing of its case. The breach of implied covenant of good faith and fair dealing failed because the court believed Variety had an effective church/state division between its advertising sales and editorial department. The negligence claim failed because Variety had no duty outside the contract. The court breezily dismissed the other soft tort claims and awarded Variety its attorneys’ fees.

This is a nice ruling because it reinforces that product reviews can be protected by anti-SLAPP doctrines. It also shows that advertisers, unhappy that a publication running a negative review of them while taking their advertising dollars, can’t easily find a way to sue based on the factual correlation.

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