Not Very Convincing....

Dean v. Friends of Pine Meadow, No. A149735 (D1d4 Mar. 8, 2018)

A golf course developer sued an advocacy group that is agitating against one of its projects for defamation and various business interference torts. That might sound familiar. Perhaps because the California Supreme Court used that precise scenario as an example of “the paradigm SLAPP” almost twenty years ago. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1125 (1999).

Developer tries to get around the fact that its claims are SLAPPs by insinuating that the Group is actually a secret astroturf outfit somehow commercially interested in competing with Developer in some (vague) way. Developer thus claims: (1) that the speech at issue is actually commercial speech under the California Supreme Court’s relatively broad formulation of commercial speech. See Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002). And (2) commercial speech isn’t protected activity under the anti-SLAPP statute. But Developer is wrong on both fronts.

Kasky does define commercial speech that is subject to lesser First Amendment scrutiny somewhat broadly to include political-ish sounding speech about a commercial party’s own actions made with the intent to appease its customers. Viz., “Our sneakers aren’t made in sweatshops.” But the Group’s speech here is nowhere close to that line. There’s no evidence that the Group is even engaged in any commercial endeavor. And its speech is neither directed to customers nor in any way commercial in character. “We don’t want your golf course in our neighborhood," is quintessential political speech on a typical local land use issue.

And even if it were, the anti-SLAPP statute’s commercial speech exception is not co-extensive with anything Kasky would call commercial speech. Code of Civil Procedure § 425.17(c) codifies the exception. But it is narrowly cabined by its own statutory terms to what most people would think of as “advertising”―factual statements by a buyer or seller of goods or services, about to its or its competitors’ goods, for the purpose of influencing the purchases or sales of its customers. If the speech from which a claim arises doesn’t fit that definition, the exemption doesn’t apply. If so, and if the claim still arises from one of the categories of speech in § 425.16(e)(1)-(4), it will trigger the anti-SLAPP statute, even if it can could arguably be characterized as “commercial.”

Affirmed.