Is Illegal Conduct Protected Under The Anti-SLAPP Statute?

The general rule is that the California anti-SLAPP statute is to be construed broadly in favor of the protection of speech and petitioning activity. But this does not mean that all "speech or petition activity is protected by section 425.16." Flatley v. Mauro (2003) 39 Cal.4th 299, (referring to)(Lam v. Ngo (2001) 91 Cal.App.4th 832, 851. The First Amendment does not protect violence or other criminal acts.

In the Flatley case, Michael Flatley (of Riverdance fame) sued an Illinois attorney in Los Angeles, California for civil extortion and defamation, among other claims.  The attorney had made certain prelitigation demands directed to Flatley arising out of an alleged rape by Flatley of the attorneys’ client. The attorney filed an anti-SLAPP motion claiming that his prelitigation demands were protected under section 425.15. The trial court concluded that the anti-SLAPP statute did not apply because it determined that the attorney’s conduct amounted to extortion. The attorney appealed the decision and the appellate court affirmed. The California Supreme Court also affirmed.

The attorney, in his various demand communications, among other statements, threatened to "go public" with the allegations of rape and disseminate press releases to numerous news organizations. He stated that, “[a]ny and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information [would] be exposed. We are positive the media worldwide will enjoy what they find.”

The high court held that the anti-SLAPP statute does not apply to speech and petitioning activity that is illegal as a matter of law. Interestingly enough, it does not appear that the supreme court intended this decision to have broad application since it also included the following in the majority opinion: "Applying this principle in the specific circumstances of the case before us, we agree with the Court of Appeal’s conclusion.

I suspect the Court wanted to limit its holding so as not to erode the clear legislative intent to read section 425.16 broadly.

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