Legal Alerts Dec 05, 2017

Government Actions are Not Protected Speech Under California Anti-SLAPP Law

Appellate Opinion Stems from Disputed Construction Permits

When a government entity issues a construction permit, that is government action not protected by California’s anti-SLAPP law — which extends only to constitutionally protected exercises such as “free speech” — the California Court of Appeal said in a recent opinion. Governments, like individuals, engage in speech. Just like individuals, a government entity sued for engaging in protected free speech can assert that right as a defense and seek to have the case dismissed early under the anti-SLAPP statute. However, the anti-SLAPP statute does not apply unless the lawsuit against the governmental entity specifically targets government speech and not government action.
In Shahbazian v. City of Rancho Palos Verdes, the court resolved a dispute between a homeowner and the City, where the homeowner challenged the City’s retroactive approval of a construction permit to a neighbor, while denying a permit sought by the homeowner. In response to the lawsuit, the City asserted the anti-SLAPP defense claiming that the issuance of the construction permit was an act of government speech and therefore was “protected speech” under the anti-SLAPP statute. The trial court denied the anti-SLAPP motion and the Second District Court of Appeal affirmed, concluding that issuing a permit — a decision mandated by law — is governmental action and not covered by the anti-SLAPP statute. For a government entity to assert the anti-SLAPP defense, it must be able to demonstrate that the lawsuit against it targets specific instances of government speech protected by the First Amendment.
The appellate court noted that the courts are particularly concerned about government entities asserting the anti-SLAPP defense because, if governments can liberally assert the defense, it will chill individuals from challenging government action and judicial oversight of potential abuses.
Going forward, this opinion adds to a growing line of cases that demonstrate that courts will closely examine anti-SLAPP claims when asserted by a government entity to ensure that the lawsuit targets government speech and not government action. Government entities that assert this defense in the future will need to be able to demonstrate to the court that a lawsuit targets the entity’s or an official’s speech and not the measure under challenge itself.
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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