Davis Wright's media lawyers have a wealth of experience using SLAPP statutes to defend the firm’s clients. Over the years, we have obtained many favorable rulings under various state anti-SLAPP laws, not only obtaining dismissals, but also getting substantial fee awards for our clients.
In recent years, several states and the District of Columbia have enacted comprehensive anti-SLAPP laws, which are designed to protect the exercise of First Amendment activities from so-called SLAPPs ("Strategic Lawsuits Against Public Participation"). SLAPP suits frequently are brought to chill the valid exercise of the constitutional rights of freedom of speech and petition. Responding to these abuses, several state legislatures have enacted laws that are designed to provide a mechanism for obtaining a prompt dismissal of the suit, as well as providing remedies –including the recovery of attorneys' fees – for successful defendants.
One of the earliest SLAPP laws is California C.C.P. §425.16, which was enacted in 1992. For the past two decades, DWT has used §425.16 to defend clients in dozens of cases, in both state and federal courts in California.
For example, in an early case applying California’s SLAPP statute in federal court, DWT partner Kelli Sager successfully defended against a libel case brought against the Los Angeles Times, in Thomas v. Los Angeles Times Communications, LLC (2002). She also obtained a ruling from the Second Appellate District in American Humane Ass’n v. Los Angeles Times Communications (2001) that broadly protected the ability of successful defendants to obtain fees under the anti-SLAPP statute. She has litigated dozens of SLAPP cases over the last twenty years, including most recently obtaining dismissals in two libel cases brought against The Los Angeles Times by doctors behind the ubiquitous 1-800-GET-THIN advertisements for Lap-Band surgery.
DWT partner Thomas Burke was involved in Seelig v. Infinity Broadcasting, obtaining the dismissal of a libel claim brought by a contestant on "Who Wants to Marry a Multi-Millionaire?" and establishing a strong appellate precedent for the broad application of California's anti-SLAPP statute. Tom and DWT partner Rochelle Wilcox also litigated Simpson Strong Tie v. Gore, a unanimous California Supreme Court decision affirming the summary dismissal of a trade libel lawsuit arising from a plaintiff class action attorney's constitutionally-protected efforts to locate potential class representatives. Simpson Strong Tie established the precedent that the "commercial speech" exemption to California's anti-SLAPP statute must be narrowly construed to protect First Amendment activities. In Club Members for an Honest Election v. Sierra Club, Tom obtained another unanimous California Supreme Court ruling dismissing a lawsuit targeting an environmental organization's First Amendment-protected election activities, and establishing the precedent that the "public interest" exemption to California's anti-SLAPP statute is to be narrowly construed to protect First Amendment activities.
DWT partner Alonzo Wickers IV also has used the anti-SLAPP statute to defend clients in a wide variety of lawsuits, including his recent victory in Aldrin v. The Topps Co. In Aldrin, Alonzo successfully defended against right-of-publicity claims filed by astronaut Buzz Aldrin that arose from Topps' use of Aldrin's name and likeness in the Topps American Heritage: American Heroes trading-card set.
Our expertise with California’s anti-SLAPP statute also extends beyond DWT’s West Coast offices. For example, Elizabeth McNamara, a partner in our New York office, was lead counsel in Stewart v. Rolling Stone LLC, which construed the relationship between commercial speech principles and anti-SLAPP protections in a putative class action for right-of-publicity claims arising out of a gatefold editorial feature discussing independent rock bands. In 2010, the California Court of Appeal found that the defendant magazine’s editorial feature did not become commercial speech merely because it was surrounded by cigarette advertising, and dismissed the suit.
Washington State has adopted anti-SLAPP protections that are similar to those available in California law. The firm’s lawyers were actively involved in getting the law changed and they use the new anti-SLAPP provisions to defend our clients’ exercise of free speech rights.
Indeed, DWT partner Bruce Johnson was the principal draftsman of Washington State’s Anti-SLAPP law (RCW §4.24.525), which was enacted in 2010. He and his colleagues in the firm’s Seattle office have obtained several dismissals, including fee awards and the statutory $10,000 penalty, under the new law. These cases have included Aronson v. Dog Eat Dog Films, Inc., which involved invasion of privacy and misappropriation claims relating to the film "Sicko" and was the first court decision applying the new statute, and Castello v. City of Seattle, which involved SLAPP claims brought against a Seattle paramedic firefighter.
More recently, in March 2012, the federal court in Seattle granted our anti-SLAPP motion to strike in Davis v. Avvo, Inc., a challenge by a Florida lawyer to the website’s evaluation of his law practice. The court concluded that, by offering speculation rather than evidence, the plaintiff had failed to make the requisite showing required by the Washington law, and observed that the Avvo website serves as a vehicle for discussion about public issues and “provides information to the general public which may be helpful to them in choosing a doctor, dentist, or lawyer.” The court also concluded that the plaintiff had also suffered no damages, merely because a prospective client had called him and “wasted his time” under the belief that Davis was a “low-ranking” attorney who practiced employment law.
Oregon’s anti-SLAPP law (ORS §31.150) was enacted in in 2001 and amended in 2009 to allow for an immediate appeal from the denial of an anti-SLAPP motion and to add language making clear that the statute is to be liberally construed in favor of the rights of expression protected under the statute.
Media lawyers in our Portland office (Duane Bosworth and Kevin Kono) have handled several cases applying ORS 31.150, in both state and federal courts. In 2009, for example, we successfully defended the weekly newspaper Willamette Week against state court claims for defamation and intentional interference with economic relations and obtained dismissal via an anti-SLAPP motion, including an award of attorney fees. We also obtained dismissal for our client Clear Channel via an anti-SLAPP motion in Gardner v. Martino, a 2006 federal court case involving claims for false light invasion of privacy, defamation, intentional interference with economic relations, and intentional interference with prospective economic advantage arising from statements made during a radio broadcast.
In January 2011, after obtaining a trial court dismissal and an affirmance from the Court of Appeals, we were successful in persuading the Ninth Circuit to apply the Oregon anti-SLAPP law in Northon v. Rule, awarding fees in accordance with the Oregon law. In that case, we represented the author and publisher of a true-crime book entitled "Heart Full of Lies" in resisting defamation and false light invasion of privacy claims relating to the publication.
In 2011, the District of Columbia enacted an anti-SLAPP law, D.C. Code §16-5501. Lawyers in our Washington office have been defending against several SLAPP cases pending in both federal and state courts in the District, and have been involved in applying the defenses available under the new law. DWT partner Laura Handman, for example, is defending the right of satire by "Esquire Magazine" in connection with a multimillion dollar SLAPP suit filed in June 2011 by several Birthers attacking a humor piece that appeared in the magazine’s May 2011 issue.