[VAR & VSEA] Another Amicus Curiae in California Supreme Court:
"Dear Honorable Chief Justice George and Honorable Associate Justices:
I am writing on behalf of the California Newspapers Publishers Association ("CNPA") to urge this Court to depublish the opinion in the above case, which currently appears at 113 Cal.App.4th 273, pursuant to California rule of Court 979.
The Sixth Appellate District's ("CA6's") holding that an appeal from the denial of an anti-SLAPP motion under Code of Civil Procedure section 425.16 does not stay proceedings in the case is inconsistent with both the letter and legislative history of AB 1675, the 1999 bill which made the denial of anti-SLAPP motions appealable. CA6's opinion is also flatly contrary to the Second District Court of Appeal's opinion in Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1189-90, which held that trial court proceedings are automatically stayed by the filing of an anti-SLAPP appeal. For those reasons and others which appear below, including the opinion's narrow construction of "public figure" status in the context of a large publicly-traded corporation, CNPA respectfully submits that the opinion in the above case should be depublished.
Unless the Varian opinion is depublished or otherwise vacated, the production of free speech and diminution of defamation suits which CNPA members have enjoyed as a result of the anti-SLAPP statute will be weakened.
Interest of Amici
CNPA has approximately 500 member newspapers throughout the state. CNPA and the undersigned were strong supporters of the bills which became the anti-SLAPP statute. (stats. 1992, ch. 726), and have championed broad construction of the statute in amicus briefs in four of this Court's decisions Construing the anti-SLAPP statute: Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106; Equilon v. Consumer Cause (2002) 29 Cal.4th 53; Navellier v. Sletten (2002) 29 Cal.4th 82; and City of Cotati v. Cashman (2002) 29 Cal.4th 69.
CNPA has also been in the forefront of every legislative amendment to the anti-SLAPP statute. CNPA supported AB 1675, which added the right of appeal of denials of anti-SLAPP motions, a provision which now appears in Code of Civl Procedure subsection 425.16(j). But in a display of CNPA’s independence and its members’ moderation in the use of the state, CNPA supported last year’s Senate Bill 515, which exempted certain types of consumer lawsuits from the application of the anti-SLAPP statute via Code of Civil Procedure section 425.17, effective January 1, 2004.
Reasons for Depublication
The anti-SLAPP statute was designed to protect free speech and petition rights from being chilled by the expense of a lawsuit. As the first of what are now more than 100 decisions under the anti-SLAPP statute explained, those who file SLAPP suits do so to inflict expense upon their targets. It almost doesn’t matter whether they win or lose, they cussed merely by diverting their opponent’s resources. See Wilcox v. Superior Court (1994) 27 Cal.4th 819.
Although many might find the conduct of the defendants in the instant case distasteful, the case is in many respects a quintessential SLAPP: a defamation suit brought by a large corporate entity against individual critics to silence their criticism. Indeed, the fact that the plaintiffs in this case sought and obtained, at least at the trial court level, an injunction against speech of the defendants betrays the true purpose the lawsuit to silence their speech.
While, as the petitioners candidly concede at page 2 of their Petition for Review, their speech was “often vulgar, hyperbolic and offensive” – and not the type of discourse in which CNPA’s members like to engage – it was in fact free speech targeting a large corporation which has at its disposal many ways of countering unwelcome criticism, including the time-honored, and judicially economical, alternative of ignoring it.
By hold that the appeal of the denial of an anti-SLAPP motion does not automatically stay proceedings, the opinion in the above case threatens to significantly undermine the utility of an anti-SLAPP motion. If the target of an anti-SLAPP motion – whether a newspaper which must guard its cash or an individual who doesn’t have much to begin with – must defend against prohibitively expensive legal proceedings while at the same time attempting to prosecute an appeal from an anti-SLAPP motion, one or more of three things will likely happen. First, the target of the SLAPP may be bled dry by the expense of the proceeding. Second, the target may have to pay large sums to settle an unmeritorious lawsuit. Or third, as happened in the instant case, the appeal from the denial of the anti-SLAPP motion may never be hear because the case may be tried before the appeal is heard.
None of those alternatives makes for good public policy, and we submit that the opinion in this case does not make for good statutory construction either. As pointed out in the Depublication letter submitted by the California Anti-SLAPP Project (“CASP”), the Varian opinion relies on earlier authority holding that appeals from orders “unquestionably collateral to the merits of the case” do not automatically stay proceedings. Reed V. Superior Court (2001) 92 Cal.App.4th 448, 453. But with rate exceptions – and the instant case is not one of them – anti-SLAPP motions are in no way collateral to the merits of the case. Indeed, in defamation cases anti-SLAPP motions are almost invariable targeted to the defamation cause of action, and if they dispose of the defamation cause of action they will likely dispose of the entire case, because liability cannot be imposed upon any theory for a privileged publication. Reader’s Digest v. Superior Court (1984) 37 Cal.3d 244, 265.
In short, the holding in the instant case that the appeal of a denial of an anti-SLAPP motion does not automatically stay proceedings is inconsistent with another published case, inconsistent with AB 1675, and inconsistent with the public policy reasons which prompted the enactment of the anti-SLAPP statute in the first place.
CNPA also urges Depublication of the above opinion because of its holding that Varian Medical Systems, a publicly traded corporation, was not a “public figure” required to show “actual malice.” (Varian, 113 Cal.App.4th 298-99.) The rationale behind requiring public figures to show “actual malice” is that they enjoy greater access to the channels of communication and are thus able to engage in the counter-speech which is the best antidote to criticism. Varian, a large corporation which no doubt engages a corporate communications staff, is certainly able to engage in counter-speech. Indeed, the Court of Appeal in this case recognized that public companies like Varian “indisputably have an interest in the dissemination of information about themselves to existing and potential investors” and to that extent “voluntarily place themselves in a position that increases the risk that they will be defamed in the eyes of those investors.” (Varian, 113 Cal.App.4th at 298.) Varian’s status as a public company makes Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, upon which the Court relied, distinguishable. The opinion in the instant case erred in not finding that Varian was a public figure, and unless depublished the instant case may embolden other large corporate plaintiffs to bring defamation suits when subjected to criticism by CNPA’s members.
For all of the above reasons, CNPA respectfully requests that the opinion in this case be depublished to remove the threat it poses to free speech in California.
Sincerely,
signed Karl Olson"
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