News
Constitutional Law
Aug. 5, 2002
Not an Entertaining Statute
Forum Column - By John H. Sullivan - If there were a contest that awarded prizes in the category of civil justice legislation attracting the most diverse collection of opponents, the winner this year would be State Sen. Sheila Kuehl, D-Los Angeles, and plaintiff trial lawyers for SB1651, a bumbling attempt to amend the anti-Strategic Lawsuits Against Public Participation law.
Forum Column
By John H. Sullivan
If there were a contest that awarded prizes in the category of civil justice legislation attracting the most diverse collection of opponents, the winner this year would be State Sen. Sheila Kuehl, D-Los Angeles, and plaintiff trial lawyers for SB1651, a bumbling attempt to amend the anti-Strategic Lawsuits Against Public Participation law.
Kuehl and the trial lawyers want to use SB1651 to deny business people the ability to use an anti-SLAPP motion to stop lawsuits from harassing their communication about products or company doings.
Can the Legislature make one group's free speech more important than another's, as SB1651 seems to do? The American Civil Liberties Union doesn't think so. Neither does the business-supported Civil Justice Association of California nor the California First Amendment Coalition, whose board of directors includes attorneys, publishers, reporters and a representative of the League of Women Voters.
Recall that a decade ago California passed SB264, sponsored by then-state Sen. Bill Lockyer in order to enable people to block an intimidating lawsuit that was seemingly filed to shut them up. This made some sense.
For example, people who tell a TV reporter they don't want a dangerous fireworks factory built on their street shouldn't have to endure the dangerous fireworks factory suing them for saying it shouldn't be built there. These sort of suits earned a title - Strategic Lawsuit Against Public Participation.
Lockyer's anti-SLAPP law was a remedy. If somebody filed a suit largely intended to stifle your free speech on a public issue or interfere with your right to ask the government to do something, Lockyer's law enabled you to zip into court and squelch it - unless the plaintiffs could show that they had a legitimate lawsuit with a good chance of winning.
The anti-SLAPP suit law became a popular tool for people harassed by lawsuits but a pain for people like trial lawyers who do a lot of suing. The law makes the filers of these SLAPP suits pay their victims' legal fees.
It was the anti-SLAPP law's even-handed application that brought Kuehl into the fray. Merck Pharmaceutical successfully used an anti-SLAPP motion to stop a suit filed by a consumer group attacking Merck's ads, literature and lobbying on behalf of its blood thinner Coumadin.
The group claimed Merck was going overboard promoting its drug. The group tried to argue that the anti-SLAPP law didn't apply because what Merck had to say didn't deserve free speech protection and didn't involve a public issue.
The court in DuPont Merck Pharm. Co. v. Superior Court, 78 Cal. App. 4th 562 (2000), however, didn't agree. The DuPont court pointed out the fact that 1.8 million Americans buy Coumadin puts the issue in the public domain. Under DuPont, big companies are just as entitled to the protection of the anti-SLAPP law as individual citizens.
This ruling did not please Kuehl or her trial lawyer friends, whose expanding use of Business and Professions Code Section 17200 lawsuits seems to be threatened by well-timed anti-SLAPP motions. SB1651, Kuehl's response to DuPont, met with unexpected opposition. The movie industry (Hollywood is embedded in Kuehl's district) said it opposed her anti-business SB1651.
So she tweaked her no-anti-SLAPP-for-business scheme to exempt "any person or entity involved in the creation, dissemination, exhibition, advertisement ... of any dramatic, literary, musical, political, or artistic work."
This concession to the entertainment industry, however, might provide a window of relief to all businesses should SB1651 become law. Any business ought to be able to preserve its ability to use anti-SLAPP motions as long as it's communicating artistically, such as by publishing corporate goals in verse or staging choral spiels to regulatory agencies. Write a musical to get your software bought. Write an opera to get your tires through testing. Unfurl your employee health and safety rules with original art. Craft your insurance policies in novella form.
These Hollywood amendments to SB1651 illustrate the illogic of attempting to allocate free speech rights on a social basis. Carried to a hypothetical extreme, the artistic talent needed to help the average business comply with SB1651 would be unprecedented. California might drain Europe, Asia and even Canada of its artists and writers.
Despite its wondrous possibilities for full employment in the arts, there's not much hope for SB1651. Not once the Sacramento lobbying firms realize that its own survival is threatened. These advocates' straightforward but inartistic presentations to committees would only expose their clients to indefensible SLAPP suits.
I happen to know one lobbyist who's not worried either way. He says he can testify in Gregorian chant.
John H. Sullivan is president of the Civil Justice Association of California in Sacramento.
By John H. Sullivan
If there were a contest that awarded prizes in the category of civil justice legislation attracting the most diverse collection of opponents, the winner this year would be State Sen. Sheila Kuehl, D-Los Angeles, and plaintiff trial lawyers for SB1651, a bumbling attempt to amend the anti-Strategic Lawsuits Against Public Participation law.
Kuehl and the trial lawyers want to use SB1651 to deny business people the ability to use an anti-SLAPP motion to stop lawsuits from harassing their communication about products or company doings.
Can the Legislature make one group's free speech more important than another's, as SB1651 seems to do? The American Civil Liberties Union doesn't think so. Neither does the business-supported Civil Justice Association of California nor the California First Amendment Coalition, whose board of directors includes attorneys, publishers, reporters and a representative of the League of Women Voters.
Recall that a decade ago California passed SB264, sponsored by then-state Sen. Bill Lockyer in order to enable people to block an intimidating lawsuit that was seemingly filed to shut them up. This made some sense.
For example, people who tell a TV reporter they don't want a dangerous fireworks factory built on their street shouldn't have to endure the dangerous fireworks factory suing them for saying it shouldn't be built there. These sort of suits earned a title - Strategic Lawsuit Against Public Participation.
Lockyer's anti-SLAPP law was a remedy. If somebody filed a suit largely intended to stifle your free speech on a public issue or interfere with your right to ask the government to do something, Lockyer's law enabled you to zip into court and squelch it - unless the plaintiffs could show that they had a legitimate lawsuit with a good chance of winning.
The anti-SLAPP suit law became a popular tool for people harassed by lawsuits but a pain for people like trial lawyers who do a lot of suing. The law makes the filers of these SLAPP suits pay their victims' legal fees.
It was the anti-SLAPP law's even-handed application that brought Kuehl into the fray. Merck Pharmaceutical successfully used an anti-SLAPP motion to stop a suit filed by a consumer group attacking Merck's ads, literature and lobbying on behalf of its blood thinner Coumadin.
The group claimed Merck was going overboard promoting its drug. The group tried to argue that the anti-SLAPP law didn't apply because what Merck had to say didn't deserve free speech protection and didn't involve a public issue.
The court in DuPont Merck Pharm. Co. v. Superior Court, 78 Cal. App. 4th 562 (2000), however, didn't agree. The DuPont court pointed out the fact that 1.8 million Americans buy Coumadin puts the issue in the public domain. Under DuPont, big companies are just as entitled to the protection of the anti-SLAPP law as individual citizens.
This ruling did not please Kuehl or her trial lawyer friends, whose expanding use of Business and Professions Code Section 17200 lawsuits seems to be threatened by well-timed anti-SLAPP motions. SB1651, Kuehl's response to DuPont, met with unexpected opposition. The movie industry (Hollywood is embedded in Kuehl's district) said it opposed her anti-business SB1651.
So she tweaked her no-anti-SLAPP-for-business scheme to exempt "any person or entity involved in the creation, dissemination, exhibition, advertisement ... of any dramatic, literary, musical, political, or artistic work."
This concession to the entertainment industry, however, might provide a window of relief to all businesses should SB1651 become law. Any business ought to be able to preserve its ability to use anti-SLAPP motions as long as it's communicating artistically, such as by publishing corporate goals in verse or staging choral spiels to regulatory agencies. Write a musical to get your software bought. Write an opera to get your tires through testing. Unfurl your employee health and safety rules with original art. Craft your insurance policies in novella form.
These Hollywood amendments to SB1651 illustrate the illogic of attempting to allocate free speech rights on a social basis. Carried to a hypothetical extreme, the artistic talent needed to help the average business comply with SB1651 would be unprecedented. California might drain Europe, Asia and even Canada of its artists and writers.
Despite its wondrous possibilities for full employment in the arts, there's not much hope for SB1651. Not once the Sacramento lobbying firms realize that its own survival is threatened. These advocates' straightforward but inartistic presentations to committees would only expose their clients to indefensible SLAPP suits.
I happen to know one lobbyist who's not worried either way. He says he can testify in Gregorian chant.
John H. Sullivan is president of the Civil Justice Association of California in Sacramento.
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