After my post on the Vermont Supreme Court’s decision, requiring all motions under Vermont’s anti-SLAPP statute to be based upon speech made in connection with an issue of public interest, a reader sent me a decision from a Louisiana appellate court, which imposed an identical requirement under Louisiana’s anti-SLAPP statute.

In Yount v. Handshoe, Handshoe published a pornographic drawing by Yount’s son, which had been filed with a court as part of a divorce proceeding between the Younts.  According to the court’s opinion, Handshoe annotated the picture to identify the author as a minor child, and the proceeding in which the picture was filed.  (The opinion states that Handshoe operated a website that reported on events in the region, and suggested that Handshoe had a prior history with Yount: “Mr. Yount is a paralegal and process server who had served Mr. Handshoe process in other defamation suits unrelated to the instant case”).

The court’s opinion explains that the picture was initially taken down after the trial judge overseeing the divorce sealed parts of the record and ordered the picture removed from the Internet(!).  According to the court, Handshoe then republished the posts containing the drawing, despite his knowledge of the trial court’s order.  As a result, the father (Yount) filed a suit for defamation, intentional infliction of emotional distress, cyberstalking and invasion of privacy.

The trial court granted Handshoe’s anti-SLAPP motion.  On appeal, the Louisiana intermediate appellate court reversed, holding that the challenged speech (the posting of the picture) arose out of a private matter, and thus was not subject to the Louisiana anti-SLAPP statute.

The court explained that, under § 971(A)(1) of Louisiana’s anti-SLAPP statute, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike . . .”.  It noted that, under the statute, an act “in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes:

  1. Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
  2. Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
  3. Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
  4. Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Eagle-eyed readers have probably noted that this very similar to the definition found in the Vermont anti-SLAPP statute).

The appellate court agreed with the trial court that the challenged speech did not fall within the scope of subsection (a) “because the comments were made on a blog, not before legislative, executive or judicial proceedings,” and did not fall within the scope of subsections (c) and (d) “because both required the statements to be ‘in connection with an issue of public interest’ and the issue in this case, a domestic divorce proceeding between private individuals, did not constitute an issue of public interest.”

It then examined the trial court’s reasoning – that, because the picture was connected to a pending judicial proceeding, it fell within the scope of subjection (b) – and rejected it.  The court reasoned that subsection (b) was ambiguous:

The language of [subsection (b)] can be interpreted in such a way that the special motion to strike will apply to any and all statements made in connection with any issue under consideration by a government body or, alternatively, that the motion will apply only to statements made in connection with public issues under consideration by a government body.  We believe that the former interpretation leads to absurd consequences.  Under this reasoning, (which is the same interpretation used by the trial court), any cause of action arising from any written or oral statement made in connection with any kind of government activity or proceeding would be subject to special motions to strike regardless of whether or not the statements were made in connection with a public issue.  Consequently, any party could defame or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, marriage, mortgage registration, passport application, or driver’s license renewal and be immunized from legal repercussions of damage to others through the use of an extraordinary procedural remedy.

* * *

To interpret subsection (b) as immunizing all statements made in connection with any issue, including those private issues that are of no public significance whatsoever, considered by a governmental body, would supersede the operative clause of the statute designed to protect individuals from strategic lawsuits against public participation.  Section (A)(1) requires that the acts in question be in connection with a public issue.  Had the legislature intended for special motions to strike to apply to all suits arising from speech or petition related activities, it would have not included phrases such as “in connection with a public issue” in the statue’s operative clause

The Yount court concluded that legislative history and actual practice supported its conclusion, noting that Louisiana’s anti-SLAPP statute was enacted to “encourage participation in matters of public significance” and that a review of Louisiana jurisprudence showed that the statute had traditionally been limited to “protect[ing] comments related to public issues.”  Against this backdrop, it concluded that the most reasonable interpretation was that all claims must have a “public interest” nexus.  Because of its earlier conclusion that the divorce proceeding was not a matter of “public interest,” the court held that the anti-SLAPP motion was improperly granted by the trial court

My takeaway: like the Vermont Supreme Court’s Felis decision, I am stunned by this decision, which simply ignores the statute’s language.  The Louisiana legislature defined “act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” to include “[a]ny written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.”

If the legislature intended this subsection to require a public interest nexus, it could have easily said so (as it did in subsections (c) and (d)).  It did not.  Rather, the legislature apparently concluded that, if the statement was made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law, it was covered by the statute.  For the court to rewrite the statute – and impose a public interest requirement – is, candidly, baffling.