The purpose of the so-called “SLAPP” statute is to eliminate lawsuits brought “primarily to chill the valid exercise of the constitutional right of freedom of speech and petition for the redress of grievances.” Code Civ. Proc. Section 425.16(a).
Courts engage in a two-part analysis focusing first on whether the disputed cause of action arises from protected activity under the statute, and if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.
Statements or writings made in a public place or forum are protect activity under section 425.16(e)(3) if they are connected with an issue of public interest.
But what is a public place or forum?
It has been defined as: " . . . a place open to the use of the general public for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Kurwa v. Harrington, Foxx, Dubrow & Canter LLP (2007) 146 Cal.App.4th 841, 846.
The term "public form" for purposes of anti-SLAPP analysis, includes settings and contexts not covered by the First Amendment.
Internet websites are a public forum where they " . . . are accessible to anyone who chooses to visit the site." Kronemyer v. Internet Movie Database (2007) 150 Cal.App.4th 941, 950.
Parks, streets, public squares, and other public places are public forums. Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1125-1126 (overruled on other grounds: citation omitted).
Interestingly enough, courts differ as to whether news media publications (e.g. newspapers, magazines) are a public forum.
Some courts believe news media publications are not a public forum because access is limited, in that editors have final authority as to what is published. Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130-1131. In contrast, other courts have held that a local newspaper or a magazine is a public forum. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039; Maranatha Corrections, LLC v. Dept. of Corrections & Rehab. (2008) 158 Cal.App.4th 1075, 1086.
This is a split in authority that the California Supreme Court needs to resolve.
Here’s why:
suppose a blog post is written by a staff writer of the Los Angeles Times about unscrupulous mortgage lending practices. The post is an expose about a specific mortgage lending company and is extremely damaging, if the statements in the post are true.
Are the statements made in a public forum? It does not appear that they would be under Wiesel. The news media defendant would be unable to avail itself of section 425.15(e)(3), even if the allegations were without merit, therefore.
Take the hypothetical even further, imagine that in response to the blog post a reader posts a comment to the blog, which is potentially actionable defamation (also assume that the comments are not moderated). Does this now become a public forum because the editor has chosen not to moderate the comments, and therefore, does not retain final authority as to the content appearing on the post? Or, does the fact that the editor (or the company, likely) has chosen not to moderate the comments means he or she has relinquished his or her "final authority" as to what is published?
Do you see the problem here? This is a question which needs to be resolved sooner than later.
Any split of authority on this question was addressed in 2006, when the California Supreme Court has stated that “Web sites accessible to the public…are “public forums” for purposes of the anti-SLAPP statute.” Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.
Public forum analysis would be unnecessary in your hypothetical, as the postings are “conduct” under 425.16(e)(4).
Either way, you’re left with an analysis of whether there is an issue of public concern. Commentary about the business practices of a mortgage lender is plainly an issue of concern to a substantial portion of the public.
And under your hypothetical, per Barrett, the newspaper is likely immune from liability under 47 USC 230.