California’s Anti-SLAPP Act Was Not Intended to Thwart FEHA Claims

By Andrew Friedman

Andrew H. Friedman is a partner with Helmer Friedman LLP in Beverly Hills. He received his B.A. from Vanderbilt University and his J.D. from Cornell Law School, where he was an Editor of the Cornell Law Review. Mr. Friedman clerked for the Hon. John T. Nixon, of the U.S. District Court for the Middle District of Tennessee. Mr. Friedman represents individuals and groups of individuals in employment law, consumer rights, and personal injury cases. Mr. Friedman is the author of Litigating Employment Discrimination Cases (James Publishing 2005-2016).

The United States of America was founded and the First Amendment ratified against the backdrop not only of a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,"¹ but also the recognition that speech and the right to petition the government for redress of grievances "are integral to the democratic process."² A strategic lawsuit against public participation (SLAPP),³ on the other hand, is the antithesis of that for which America stands; it is a lawsuit filed to deter citizens and groups of citizens from exercising their constitutional rights to speak out on public issues and/or petition the government.⁴ A SLAPP—usually masquerading as an ordinary lawsuit such as defamation or interference with prospective economic advantage⁵—is typically filed by a deep-pocketed corporation against a citizen or a group of citizens in order to silence criticism, punish a whistleblower, or win a commercial dispute.⁶ Indeed, "[t]he quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance. As its name suggests, it is a strategic lawsuit designed to stifle dissent or public participation."⁷

At the strong and repeated urging of then California State Senator Bill Lockyer (Chair of the California Senate Judiciary Committee), the California Legislature enacted Civil Procedure Code § 425.16, California’s anti-SLAPP statute, "out of concern over ‘a disturbing increase’ in civil suits ‘aimed at preventing citizens from exercising their political rights or punishing those who have done so.’"⁸ Senator Lockyer commented that the anti-SLAPP legislation was needed to protect "ordinary citizens who are sued by well-heeled special interests."⁹ The Legislature was particularly concerned with ensuring "continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process."¹⁰