The Logical Limits of an Element Based Anti-SLAPP Analysis

Spencer v. Mowat, No. B295738 (D2d5 Mar. 24, 2020)

Plaintiffs in this case allege that defendants are a gang of local surfers in the PV who have conspired in a campaign of intimidation and violence to prevent outsiders from surfing their break. Two defendants—alleged to have been members of the conspiracy but not to have personally committed any violent acts—brought an anti-SLAPP motion. It was denied.

On appeal, the court makes relatively short shrift of the argument that the claims arise from protected activity. In doing so, it focuses on the various violent acts committed by others in furtherance of the alleged conspiracy, which cases like 7 Stars regard as a proper focus of applying “arising from” to a conspiracy.

Affirmed.

At high level of generality, the analysis here makes some practical sense, for the same reason I thought 7 Stars was not a particularly hard case.

But 7 Stars was decided several months before the Supreme Court’s decision in Wilson. There, the court (in a discrimination case) held that if conduct that makes up any element of a multi-element tort satisfies the arising from test, then the first prong of the anti-SLAPP analysis is satisfied. That is the case, notwithstanding the fact that liability turns on the proof of other elements that are clearly not protected activity. Thus, in Wilson, the fact CNN had a colorable claim that it fired the plaintiff to enforce journalistic ethics against plagiarism was adequate to be “protected activity.” That was the case even though the crux of plaintiff’s claim—that he was fired because of his or her race—is not protected by the First Amendment.

In a conspiracy case, the existence and scope of the agreement is a key element of the claim. So following Wilson, to decide whether a conspiracy claim arises from protected activity, a court would need to look at whether the agreement itself is could be “other conduct in furtherance” under Code of Civil Procedure § 425.16(e)(4), notwithstanding the fact that roughing up Barneys from the Valley is obviously not constitutionally protected. 

And in doing that analysis, Wilson says a court needs to credit, to some significant degree, the moving Defendant’s evidence. So what if, in this case, Defendants put in evidence akin to CNN’s evidence in Wilson? Suppose defendants declared that they were an informal community organization concerned with the negative consequence of overuse of certain beaches, which Defendants believed merited a rule that beach access should be constrained to members of the local community? Taken at the same value the court gave the CNN’s evidence in Wilson, wouldn’t the agreement element of the conspiracy claim implicate the defendants’ freedom of association, and thus satisfy § 425.16(e)(4)? Notwithstanding that the overt act element of the claim entails stuff that is clearly outside of the First Amendment?

I've haven’t yet managed to come up with a fully-theorized answer to this that jives with Wilson. But it does illustrate how that there are a lot of unresolved questions left open by the formal element-based framework adopted by the Wilson court.