Protecting Anonymous Speech Under California’s Anti-SLAPP Law

On Friday the Cyberlaw Clinic filed an amicus letter (PDF) on behalf of Global Voices Advocacy and the Media Legal Defence Initiative on an important case concerning anti-SLAPP law in California, currently being petitioned for review by the Supreme Court of California. Anti-SLAPP laws exist in numerous states to protect those speaking in government proceedings or on matters of public concern from facing frivilous lawsuits designed to dissuade them from speaking out. (“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.”) In order to quickly remove vexatious lawsuits while allowing valid claims to go through, courts considering an anti-SLAPP motion require plaintiffs to show that a lawsuit has merit before before allowing the litigation go forward. Under California’s anti-SLAPP law, this means the plaintiff must state and substantiate all elements of their claim if they want to proceed. When a lawsuit is based on a claim of defamation, this includes proving that the speaker acted with fault, either with negligence or “actual malice.”

The Supreme Court of California is currently considering whether to take a case that applies this law to anonymous online speech. In the case, Wineland-Thomson Adventures, Inc. v. Doe 1, a Massachusetts travel company named Thomson Safaris filed a defamation lawsuit in California against the anonymous publisher of a website called “Stop Thomson Safaris,” which hosts information about investigations and lawsuits filed in Tanzania against the safari company’s Tanzanian counterpart. The defendant brought an anti-SLAPP motion, and noted that the plaintiff’s complaint did not actually specify what statements the plaintiff alleged to be defamatory, as California law requires. The trial court denied this motion, however, and the California Court of Appeal agreed, saying the plaintiff could later amend the complaint to show what statements were defamatory. The Court of Appeal also did not require the plaintiff to prove the defendant acted with fault as anti-SLAPP law normally requires, solely because the blogger was anonymous.

Global Voices Advocacy and the Media Legal Defence Initiative both work to defend the rights of freedom of expression around the world. As the amici note in their letter, the decision of the California Court of Appeal creates a dangerous environment of persons reporting anonymously on issues with governments and corporations outside the United States. As the letter notes, “[f]or online speakers who write about the actions of corporations and governments outside of the United States, like the blogger here, a frivolous lawsuit could mean their economic ruin, and anonymity may be the sole guarantor for their safety.”  The letter notes that allowing inadequate defamation complaints to survive an anti-SLAPP motion is contrary to prior cases and the intent of the California legislature. Also, relaxing the requirements for plaintiffs proceeding against unknown defendants reduces anonymous speech to lower protection than all other speech, which is contrary the treasured tradition of anonymous speech in this country. As the Supreme Court of the United States once put it, “[u]nder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

The amicus letter is available here, and was drafted by Cyberlaw Clinic student Shane Anderson (HLS ’16) and Clinical Fellow Andy Sellars. This type of letter is a special form of brief adopted by the Supreme Court of California, when the court is considering taking a case. The court is expected to decide whether to take the case by late January.