Recent court decisions transform legal tools for protecting free speech into an instrument for the suppression of the public’s speech and access rights

By James Chadwick

Recent decisions by two California Courts of Appeal have turned California’s anti-SLAPP law into a legal Frankenstein’s monster. In doing so, they have turned a law designed to protect the public’s exercise of free speech and petition rights into a tool for government suppression of those rights.

The decisions in Holbrook v. City of Santa Monica and Californians Aware v. Orange Unified School District both arise from the efforts of members of government bodies to challenge practices of the agencies they served. In Holbrook, two members of the Santa Monica City Council challenged the Council’s practice of postponing the public comment period at Council meetings until the end of the meeting, when most members of the public—exhausted by interminable discussions and hearings —had left and gone home.

In Californians Aware, a dissident member of a school board and a public interest group challenged the board’s conduct in censuring the member for publicly opposing an action, taken in a closed session, that he believed should have been taken in public. (In an Orwellian pronouncement, the board censured him for disclosing matters discussed in closed session, even though he did not even attend the closed session.)

In these cases, individual public servants had the courage to assert that the entities they served had violated the First Amendment, California’s open meeting laws, and the California Public Records Act (California’s version of the Freedom of Information Act). The government and the courts soon saw to it that they would regret their temerity.

The government bodies responded to the suits by invoking the anti-SLAPP statute. This law, enacted in the 1990s, was designed to prevent “Strategic Lawsuits Against Public Participation” (or “SLAPPs”). It allows for a court’s early consideration of the merits of cases arising from acts protected by the rights of free speech or petition, and dismissal of cases that are found not to be meritorious. In addition, it provides that attorneys’ fees and costs are to be awarded to any defendant who succeeds in getting claims dismissed. The statute has been a boon to citizens, activists, the press, and others who become involved in matters of public controversy and speak out about them.

However, through a bizarre, alchemical process, the courts considering these cases have transformed the anti-SLAPP statute into a tool for government suppression of the very rights it was intended to protect. Relying on the dubious proposition that government agencies (as opposed to individual government officials) have free speech rights, the courts held that lawsuits seeking to enforce constitutional rights and open government laws can be dismissed under the anti-SLAPP statute.

The courts’ tortured reasoning has produced a monster that bears little resemblance to the noble principles from which it derives. This creature elevates the government’s interest in suppressing dissent over the public interest in free speech and open government. Moreover, its grim aspect looms menacingly over every effort to open government meetings or public records to scrutiny. Doing so may now subject you to having to pay the government’s attorneys. The prospect of litigating against the government to enforce rights of free speech or public access is already sufficiently daunting to deter all but the most determined. This additional deterrent will discourage even those.

The claims in these cases were not completely altruistic. The public servants who brought them clearly had axes to grind, and the courts relied on that fact to discredit their complaints. But that is true of virtually everyone who tangles with public agencies. Without some significant personal motivation, no one would ever risk confronting the superior power and resources of the government.

At the end of Mary Shelly’s novel, Frankenstein’s monster says “Fear not that I shall be the instrument of future mischief,” and disappears into the Arctic waste. If only the same could be said of these decisions. Unfortunately, it appears that only the California Supreme Court or the Legislature has the power to lay these demons to rest.


James Chadwick is an attorney who serves as President of the Board of the California First Amendment Coalition.