Until very recently, and in fact until the signed legislation becomes effective January 1, 2010, government agencies could use a provision in anti-SLAPP to hit you with attorneys fees and costs. This is precisely what happened in Californians Aware et al. v. Orange Unified School District and prompted SB 786.
From CalAware:
“SB 786 will ensure that laws designed to ensure free speech are not used to silence those who seek access to government proceedings and documents,” said Senator Leland Yee (D-San Francisco/San Mateo), the bill’s author. “SB 786 will not only protect the right of individuals to enforce open government laws without fear of a significant financial burden, but will also ensure that government entities act with greater transparency.”
In 1992, the California Legislature enacted the original anti-SLAPP (Strategic Lawsuits Against Public Participation) law for individuals to obtain an early judicial ruling and termination of a SLAPP suit arising out of one’s exercising of speech and petition rights in connection with a public issue. Prior to the law, big corporations and developers – in attempt to silence an individual who was exercising their free speech or petition rights – would often masquerade false defamation cases as ordinary lawsuits. Such cases resulted in severe economic hardships against innocent individuals.
In 2007, Californians Aware (CalAware) – a nonprofit organization dedicated to public forum rights – filed an action for declaratory relief (not damages) against a school district, alleging violations of the Brown Act, the CPRA and the First Amendment.
“We challenged the board of trustee majority’s censure of one of its members for his open session criticism of board action and staff performance, and the superintendent’s editing of those remarks out of the video recording distributed for cable TV replay,” wrote CalAware General Counsel Terry Francke, in a letter supporting the bill. “Our belief at the time was (and still is) that the public has a right to hear even the harshest criticism by an elected member of a government body as to how the body has dealt with any issue—even a personnel matter—on which it has acted.”
The trial court dismissed CalAware’s action upon the district’s anti-SLAPP motion (Californians Aware et al. v. Orange Unified School District, No. G038499). As a consequence, the nonprofit organization was held liable to pay the district’s attorney’s fees and costs for trial totaling more than $80,000.
“The anti-SLAPP law was designed to protect freedom of speech and petition; not to chill an individual’s right to participation and ability to access public documents,” said Yee, who has authored several bills calling for greater public access and government transparency.
“The use of the anti-SLAPP law by government agencies, though, has subverted the very speech and petition rights the law is intended to protect,” said Tom Newton, General Counsel for the California Newspaper Publishers Association (CNPA). “The threat that a Brown Act plaintiff could become saddled with the public agency’s attorney fees whenever the court determines the plaintiff is unable to establish a probability of prevailing on the claim has created a profound chilling impact on the willingness of citizens to pursue their rights under the law.”
So we welcome the new law with open arms and closed pocket-books.
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