robinhoodOO wrote: redblueyellow wrote: robinhoodOO wrote:
brotherdarkness wrote:Can someone explain the bare bones of what I need to know about anti-SLAPP / First Amendment issues?
Sure, here is the quick down and dirty:
Basically, if a suit attempts to regulate/seek damages related to speech (i.e. extortion, defamation, etc.), you can file an anti-SLAPP motion that the claim/case attempts to seek damages for otherwise permissible/protected speech.
There are 4 bases: (1) The claim seeks damages for speech made during a legislative, judicial, or executive proceeding; (2) It seeks damages for speech relating to a legislative, judicial, or executive proceeding; (3) (THE MOST COMMON) It seeks damages for speech given in a public forum or related to a public matter; or (4) (CATCH ALL) It seeks damages for speech otherwise protected by the 1st Amendment.
So, basically a Constitution/1st Amendment cross-over.
If you prevail and it is determined the that the action was reckless or malicious, you may file a SLAPP-back action for punitives and damages.
So let's say that P sues D for defamation and IIED or something else.
D responds and says that the cause of action is basically for his protected speech in a public forum or is related to a public matter.
Then what happens? P has to prevail on the defamation cause to defeat the anti-slapp measures? Does he have to prevail on the IIED as well? Or at all?
In other words, how would you do the analysis after the you get to the "So, basically a Constitution/1st Amendment cross-over" portion?
Unless that's our cue to show that the D has protected speech under the 1st Amendment? And if the D can prove his speech was protected, how do you address the rest of the anti-slapp motion?
That's what I'm saying, I think it forces you into a First Amendment analysis. For example, you're being sued for hate speech. Can the gov grant a judgment in favor of party seeking damages for injurious hate speech?
You start with the procedure and discuss the basis to strike the Complaint: Anti-SLAPP.
Then, discuss First Amendment application for the substantive Q.
Then, SLAPP-back--which requires moving party to prove the original action was meritless/malicious.
This is helpful, but one point of detail - does it force you into a 1st amendment analysis, or an analysis of whether the P would succeed in whatever their original action was (likely to be something like defamation or invasion of privacy)?
I had thought that once the D shows that anti-SLAPP is in play (so by showing it related to a public matter etc) the burden shifts to the P, who has to show that they will probably succeed in their claim for, say, defamation (another point of detail - I didn't think you needed to show you will definitely succeed, as this is a motion to strike and not a substantive hearing on the merits?).
Then, if P cannot show they would probably succeed, you can SLAPP-back.
Apologies if this seems pedantic, but I have anti-SLAPP down as an area where we would see a Torts / CA Civ Pro cross over, with a bit of Con, but the emphasis would likely be in showing you know the anti-SLAPP rules plus can do a, say, defamation analysis.
Does this make sense?