In San Diegans for Open Government v. San Diego State University Research Foundation, et. al. (No. D069189, filed 5/3/17) the California Court of Appeal for the Fourth Appellate District held the act of contracting to provide office space for newsgathering activities constitutes conduct in furtherance of the constitutional right of free speech and falls within the protection of California’s anti-SLAPP statute.
In San Diegans for Open Government (“SDOG”), investigative newsource (“inewsource”) entered into contracts with KPBS (San Diego’s public radio and television station) to produce news stories for KPBS and did so in exchange for the right to use KPBS’s offices and equipment located at San Diego State University (SDSU). KPBS is a department of SDSU and together, inewsource and KPBS have jointly produced countless news stories. In or around February 2015, inewsource published a series of stories critical of San Diego attorney Cory Briggs. Thereafter, SDOG (apparently controlled by attorney Briggs) filed a lawsuit alleging the contracts between inewsource and KPBS violated certain statutory prohibitions against self-dealing involving public funds. Specifically, SDOG claimed inewsource’s executive director violated these prohibitions by simultaneously acting in a dual capacity as an SDSU faculty member.
Defendants filed an anti-SLAPP motion claiming SDOG’s lawsuit was based on the exercise of constitutionally protected speech. Under California’s anti-SLAPP scheme, a lawsuit filed primarily to chill the valid exercise of free speech is subject to dismissal under California Code of Civil Procedure section 425.16, commonly referred to as California’s “anti-SLAPP statute.” The trial court granted the motion and dismissed SDOG’s complaint. SDOG appealed, arguing its lawsuit was exempt from the anti-SLAPP law under the “public interest exemption” to the law set forth in California Code of Civil Procedure section 425.17. SDOG further contended the exception to that exemption for media defendants was inapplicable. Alternatively, it argued the Defendants’ conduct did not constitute “protected activity” within the meaning of the anti-SLAPP statute.
On appeal, the SDOG court affirmed. First, the court held the “public-interest exemption” to the anti-SLAPP statute did not apply to SDOG’s lawsuit. That exemption provides the anti-SLAPP statute does not apply to actions brought solely in the public interest. However, there are exceptions to that exemption, including one for “news media when the underlying act relates to newsgathering and reporting to the public …” The SDOG court held the Defendants, news media entities and the allegedly self-dealing executive director, fell within the exception because the contracts at the heart of the lawsuit dictated the process through which “inewsource and KPBS jointly were to begin and carry newsgathering and reporting.” It held this was “engaging” in the gathering of information for communication to the public within the meaning of the exception. Thus, SDOG’s complaint was subject to the anti-SLAPP statute.
The Court then moved to the merits of Defendants’ anti-SLAPP motion which involves a two-step process. First, the defendant must establish the challenged claim arising from activity protected by C.C.P. 425.16. Second, if the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.
With respect to the first prong, the Court found the Defendants’ conduct fell squarely within the anti-SLAPP statute. It explained “[n]ews stories addressing issues of public interest do not arise out of thin air. They often require newsgathering using offices, internet access, studios, and production services.” The anti-SLAPP statute protects not only the speech itself but also “conduct in furtherance of the exercise of the constitutional right of … free speech in connection with a public issue or an issue of public interest.” The court noted “[t]he allegations in SDOG’s lawsuit make clear the injury producing conduct underlying its claims consists of the contracts between inewsource and KPBS that govern the process in which these defendants jointly engage in newsgathering and reporting news to the public.” This conduct, it held, constitutes a protected activity within the meaning of the anti-SLAPP statute. In reaching this conclusion, the court rejected SDOG’s argument the lawsuit targeted unlawful self-dealing, not protected speech. It reasoned this argument “improperly conflate[d] distinct issues of conduct and motive.”
With respect to the second prong, the SDOG court found SDOG failed to submit any competent and admissible evidence to establish a prima facie case on any of its claims. Accordingly, it found the trial court properly granted the anti-SLAPP motions.
The SDOG case is an example of how the anti-SLAPP statute’s complex procedural scheme can present hurdles to both prevailing on, and/or successfully opposing, an anti-SLAPP motion. The focus of the anti-SLAPP statute, and its protections, remains on the conduct forming the basis of the challenged complaint and the statute continues to be broadly construed to effect its stated purpose of protecting free speech.
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