How the state turned a shield into a sword
California citizens who sue the government for violating their rights had better watch out: Under a bizarre state law called “anti-SLAPP,” they risk being sued by the government for doing so, on the theory that they're violating the government's own constitutional rights.
You read that right: California courts have ruled that government itself has a right to free speech, and therefore that anyone who goes to court to challenge the legality of something the government does risks being punished for trespassing on itsexpressive freedom.
At least, that's the argument lawyers for the city of Rancho Mirage are making in an ongoing lawsuit in which property owners challenged the constitutionality of an ordinance barring them from renting out their houses. Viewing that ordinance as a violation of their constitutional right to private property, they filed a lawsuit — only to have the city respond by filing an “anti-SLAPP” motion against them. The city argues that their true motive in the case was to censor the government's free speech. If granted, such a motion would require the property owners to pay the city's legal bills.
The “SLAPP” in “antiSLAPP” stands for “strategic lawsuit against public participation,” and it refers to a situation in which one person sues another for doing something that he or she has a constitutional right to do. That's an abuse of the legal process,and it often happens in political disputes when, for example, aperson who wants the government to do something sues someone else who argues against that thing — perhaps on a trumped-up charge of defamation. The real intent behind such a lawsuit is to intimidate the opponent into silence. California's “anti-SLAPP” law allows judges to swiftly dismiss such cases, and penalize those who file them by requiring them to pay the other side's attorney fees. The idea was to put a stop to such intimidation and protect open debate.
Many states have such laws. Where the Golden State is unique is that its courts have ruled that the government itself has free speech rights protected by the “anti-SLAPP” law. That means cities can sue their own citizens for “intimidating” the government whenever they have the temerity to sue over actions they think are illegal. In the Rancho Mirage case, the city's lawyers claim that by challenging the anti-rental ordinance, the property owners are trying to deprive the city of its right to express its belief that renting property is a bad thing. In other words, they're trying to censor the government.
That's absurd, and a trial judge rejected that argument — but the city has appealed, pressing its claim that the property owners' case should be dismissed and that they should have to pay the city's legal bills.
California judges aren't blind to the dangers of the bizarre “anti-SLAPP” precedent. In 2004, one appellate court warned against politicians using “anti-SLAPP” to “impose an undue burden upon the very right” that it was intended to protect. But city officials now routinely abuse the law in just that way. In 2016, when property owners sued Santa Barbara over a similar anti-rental ordinance, the city filed an “anti-SLAPP” motion against them. The trial judge rejected it — but only after more than a year of legal wrangling that cost the property owners $30,000 in legal bills. That same year, a citizen sued Siskiyou County officials for meeting in secret, in violation of state open-meeting laws. They retaliated with an “anti-SLAPP” motion — which the judge granted. An appellate court later reversed that decision, but it took more than two years — and only then could the initial lawsuit start.
Just last year, when a group of parents sued Los Angeles for shutting down public schools during the COVID pandemic — shutdowns they thought were illegal —t he local teachers union filed an “anti-SLAPP” motion against them, arguing that the shutdowns were the result of an agreement between the union and the city, and therefore that the lawsuit was trying to censor the union's free speech. That case ended in settlement, but it and the other costly, time-consuming abuses of California's “antiSLAPP” law inevitably scare citizens away from taking on the government in court, even when they have legitimate complaints.
California's “anti-SLAPP” law is an example of a good law gone awry through bad judicial interpretation. Government has no free speech rights; in fact, it has no rights at all, only powers given to it by the people. By holding otherwise, California courts have transformed what was intended as a constitutional shield into a sword the government can use to threaten anyone who dares to stand up for their rights. Judges in the Rancho Mirage case should take the opportunity to straighten out this weirdly tangled law.