The First Amendment and the Anti-SLAPP Statute

In Schaffer v. City and County of San Francisco (here), the court clarified the scope of speech protected by the anti-SLAPP statute. The plaintiff contended that certain statements made by the defendant police officers were not protected by the anti-SLAPP statute because, as speech made by police officers in the course of their employment, the statements were not protected by the First Amendment under Garcetti v. Ceballos, 547 U.S. 410 (2006), which had held that a district attorney had no First Amendment protection against disciplinary action based on statements made in the course of his employment, even though the statements involved a matter of public concern.)

Code of Civil Procedure Section 425.16(b)(1), the anti-SLAPP statute, provides in relevant part that "[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. " Section 425.16(e) in turn defines "any act . . . in furtherance of the person's right of petition or free speech under the United States or the California Constitution in connection with a public issue’" as including "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Consequently, as the Schaffer court held, whether speech is protected for purposes of the anti-SLAPP statute turns on this definitional statute, not on whether the speech is protected in the abstract under the federal or state constitutions. In this case, the speech was protected despite Garcetti, because it was "made in connection with an issue under consideration or review by a legislative, executive, or judicial body," and thus satisfied Section 425.16(e)(2).