The right to participate in the public political process is the essence of democracy.
It is what gives people control over the direction of their society. It makes people citizens instead of subjects.
In the Anglo-American tradition, the right to participate has a long history.
Clause 61 of Magna Carta gave the barons the right to petition the king for redressfor any breach of that Charter.
The English Bill of Rights of 1689 similarly provided, “[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.”
In the Declaration of Independence, the Framers highlighted the infringement of their right to participate as a reason for the Revolution: “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”
In the United States, the right to participate finds life in the First Amendment.
The First Amendment protects the rights of (i) free speech, (ii) assembly, and (iii) the right to petition.
And in California, these rights are afforded a separate guarantee by the California Constitution, which protects the rights of Californians to “freely speak . . . on all subjects,” “petition government for redress of grievances, and assemble freely to consult for the common good.”
A significant threat to public participation comes about through so-called “SLAPP” suits — “SLAPP” standing for “strategic lawsuit against public participation.”
For example: someone who publishes an article in a newspaper and then is sued over that article confronts a SLAPP suit, as expressing an opinion in public — free speech — is a constitutionally protected right.
Someone who mounts a vigorous defense in a court proceeding and then is sued over that conduct confronts a SLAPP suit, as the petitioning of a court — the right of redress — is a constitutionally protected right.
SLAPP suits are concerning for a variety of reasons, but one of the most troubling aspects is that it is usually the stronger and more financially capable party that brings the SLAPP suit. The defendant facing a SLAPP suit may be compelled to settle to make the headache go away and avoid the burden of trial.
Fortunately, California law provides an important mechanism for dealing with SLAPP suits: the “anti-SLAPP” law, codified at Cal. Civ. Proc. Code § 425.16.
The anti-SLAPP law permits a defendant to strike a lawsuit at the very beginning of the lawsuit — within 60 days of service of the complaint — by forcing a plaintiff to show to the court that the lawsuit is meritorious.
These are classic SLAPP fact patterns:
- In 1996, after several rounds of appeals, the Church of Scientology sought to set aside a $2.5 million judgment that had been awarded to Lawrence Wollersheim, a former member of the Church who was awarded general and punitive damages for intentional infliction of emotional distress. In response to the Church’s new lawsuit, Wollersheim filed an anti-SLAPP motion, arguing that the Church was seeking to punish him because of his right to petition the courts for redress. The Court of Appeals for the Second District agreed, writing that the Church had employed “every means, regardless of merit, to frustrate or undermine Wollersheim’s petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents’ right to utilize the courts to seek legal redress, the trial court may properly apply [the anti-SLAPP statute].” The court then struck the Church’s lawsuit. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996).
- Jay Leno and NBC were sued in 2006 for defamation and intentional infliction of emotional distress by an egg donor who was the subject of joke by Leno on his “Headlines” routine. In response, Leno and NBC filed an anti-SLAPP motion, arguing that no reasonable person would have taken the joke to be factual or defamatory. The court agreed and struck the plaintiff’s lawsuit. Drake v. Leno, 34 Med.L.Rptr. 2510 (2006).
If you are a defendant facing a lawsuit based on activity that is protected by the California or federal Constitutions — in particular, speaking freely or accessing the courts — you may be entitled to end the lawsuit under the anti-SLAPP law.