Statements on Public Social Media Can Be Protected Under SLAPP Laws

California’s SLAPP (strategic lawsuit against public participation) laws are intended to prevent litigation filed for the improper purpose of censoring, intimidating, or silencing critics. (Code of Civil Procedure § 425.16.)  A defendant in a lawsuit that may improperly silence his speech may file an “anti-SLAPP” motion in the case, designed to be an efficient and cost-effective defense against such litigation.

Recently a Court of Appeal issued its decision in Daniel v. Wayans (2017 WL 526494). The underlying lawsuit sought damages, in part, for actor/comedian Marlon Wayans posting a picture of the plaintiff (an extra in a Wayans’s film) on his Twitter feed, juxtaposing plaintiff with the cartoon character “Cleveland Brown.” The opinion analyzed whether a lawsuit seeking redress for a “tweet” by Wayans may be subject to an anti-SLAPP defense.

California courts apply a two-step process to determine whether a particular lawsuit is a “SLAPP.” First, the court decides whether the defendant has established that the litigation arises from protected activity, as defined in Code of Civil Procedure section 425.16, subdivision (e). Making a written or oral statement in a “place open to the public or a public forum in connection with an issue of public interest” is considered a person’s right of petition or free speech under the SLAPP law. If protected activity is established, then the court considers whether the plaintiff (in opposition) demonstrated a probability of prevailing in the case. (See Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463.)

In the anti-SLAPP context, the California courts have set a low bar for what may be deemed an “issue of public interest.” Courts have found issues that are not “significant” to nevertheless be of public interest for purposes of an anti-SLAPP motion. The Daniel v. Wayans court cited Hecimovich, where “a dispute between a fourth grade basketball coach and members of a parent teacher organization regarding parental complaints” was found to be a matter of public interest in the SLAPP context.

In Daniel v. Wayans, the court held that Wayans’s “allegedly harassing and offensive Internet posting was a writing made in a place open to the public or a public forum and it was made in connection with an issue of public interest.” Under the anti-SLAPP law, “Web sites accessible to the public ... are ‘public forums.’” The Court of Appeal observed that Wayans’s Twitter account “had over a million followers” and “constitutes a publicly accessible social media forum.” Regarding whether the statement was made “in connection with an issue of public interest,” the court noted that Wayans was a popular actor, and a photo of someone who appears in his film might constitute a topic of public interest.

Schools and colleges—and affiliated organizations—increasingly use social media to publicize information to a wide audience. As governmental entities, public schools and colleges should evaluate the advantages and disadvantages of establishing official social media pages. Policies should describe an official social media account approval process, and regulate users and access. Public entities should also carefully review comment and privacy settings on such pages in light of the sort of forum they intend to create, and the public image they intend to project. In the event of litigation based on a social media post or comment, schools and colleges may consider the availability of SLAPP-related defenses to dispose of such claims.

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