When contracts, courts and the First Amendment collide, the result is often uncertainty. As many attorneys experience, the specter of fees for a defendant looms over any civil action that would potentially rise out of a person’s right of petition or free speech. These uncertainties spring from broad anti-SLAPP statutes enacted to combat baseless lawsuits brought primarily to chill the exercise of freedom of speech. For my non-attorney readers, a strategic lawsuit against public participation -- aka SLAPP -- is a lawsuit that may potentially censor, intimidate and silence critics by burdening them with heavy legal costs until they abandon their criticism or opposition.
To remedy this behavior, many jurisdictions have passed so-called anti-SLAPP statutes as a mechanism that could potentially dismiss such strategic lawsuits. Anti-SLAPP statutes established a new procedural tool in the form of a “special” motion to strike, effectively reversing the standard burdens of proof at a very early stage of the litigation, requiring the plaintiff to all but prove their case at the outset. The boldest component of these laws makes it mandatory for the court to award a prevailing defendant his or her attorney’s fees.
As the head of an entertainment law firm in Beverly Hills, California, there is no escaping the inherent risks -- and potential rewards -- of the ubiquitous anti-SLAPP motion. Time and again, my firm has had to weigh the risks and determine whether a claim can, or should, be filed on behalf of an eager plaintiff seeking to redress harms that arise out of a person’s right to free speech. My partner and I advise our clients as to which claims could be filed to both protect their interests and avoid the severe penalties associated with an anti-SLAPP dismissal.
I offer here a few topographical guideposts that we typically follow so you can understand your rights. These are important for any business owner of any industry to understand.
First, in the absence of a contractual agreement or violation of copyright, you may want to exercise circumspection before seeking to pre-empt the publication of information. The law explains that if a publication would possibly infringe on your rights, it may prove to be an insufficient reason for restraint. Consequently, an attempt to prevent the content's publication is generally a losing battle, and in this prolific anti-SLAPP climate, an invitation to pay your adversary’s attorneys’ fees. Apart from contractual privity, generally only copyright law can justify a restraint on a defendant’s First Amendment rights.
Conversely, if you do have a binding contract, you may consider enforcing it given the circumstances of your situation. The matter gets tricky, however, when you seek to enjoin a third-party from acting in concert with the contracting party.
I faced this exact challenge this past year, as my firm represents the estate of Selena Quintanilla-Pérez. Despite executing a contract agreeing to refrain from commercially exploiting the name, image and likeness of Selena for financial gain, Selena’s widower planned to develop a television production. We moved quickly to restrain the production and as anticipated, an anti-SLAPP motion quickly followed. We responded by stressing that Selena’s widower exercised his fundamental right to contract to bargain away his First Amendment rights.
Just as an arbitration agreement is a waiver of the fundamental right to a trial by jury, we are free to privately contract away our various rights, including First Amendment rights, so long as those terms do not conflict with public policy.
As it currently stands, the alluring incentive of mandatory anti-SLAPP attorneys’ fees outweighs the almost nonexistent disincentives in bringing the special motion. Ultimately, a lawyer's most effective defense to this tactic may be to extract the defendant’s free speech complaint from the abstract and underscore the tangible impact on the parties’ contractual rights.
Specifically, you may want to focus your efforts exclusively on the breach and possibly forego seeking more relief than what the contract explicitly provides. Likewise, you might not want to concede the first prong of the anti-SLAPP analysis, particularly in connection with declaratory judgment actions, where it can be argued that even though the protected activity may have “triggered” the complaint, the thrust of the complaint centers on the enforceability of the contract at issue.
Alternatively, this means that many businesses, especially those in media production, seeking to exploit intellectual property may want to confirm that the rights they license are not otherwise encumbered by a contract. Even in the absence of privity, a company can encounter problems in their endeavors by later discovering that the right to commercially exploit a particular subject-matter was previously bargained away.
Likewise, for businesses which find themselves as a defendant, if you may want to consider tying the lawsuit and/or claims therein to any state filing or even the recording of a lien, such activity is covered and protected by the anti-SLAPP statute, affording the business an opportunity to take advantage of this procedural tool. Simply, for a creative business defendant, a review of the ever-increasing variety of non-traditional uses of the anti-SLAPP statute could potentially inspire any company to find a nexus between its activities and the protection of the anti-SLAPP statute.
We have also employed California’s anti-SLAPP statute to dispose of meritless counterclaims reflexively filed in an ill-advised attempt to try to level the playing field of a legal action, including claims that attempt to draw upon pre-litigation communications to state a claim. Particularly within the context of impetuous counterclaims, the heightened impact of anti-SLAPP legislation on dubious claims arising out of the exercise of free speech can clearly be seen.
Disclaimer: The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
