California is one of many states that has an “anti-slapp” statute. And it has nothing to do with what teenage brothers do to one another. Note the two “p’s.”
“SLAPP” stands for “strategic lawsuit against public participation.” The idea behind a “slapp” suit is to stop protected First Amendment activity by forcing the party to litigate. In many cases, a party with limited resources may quit rather than run up big legal bills.
Anti-slapp statutes are designed to protect the First Amendment activity by providing courts with a mechanism to dispose of such lawsuits as early as possible. A California plaintiff named Paul Hupp recently saw first-hand how the statute operates.
Hupp posted comments on the Web site maintained by the Orange County Register in reaction to a Register article on public pensions. Apparently, Hupp and a reader named Mike Bishop started trading comments about each other on the Web site. Hupp took issue with certain of Bishop’s comments about him and demanded the Register remove them.
When the Register failed to remove the comments, Hupp filed a lawsuit, contending that the Register’s User Agreement created a contract between it and Hupp which required the Register to remove the offensive comments.
There were, however, some rather gaping holes in Hupp’s case. For starters, the Register’s user policy gave the Register the discretion to remove comments, but imposed on it no duty to do so. In fact, the agreement expressly stated “we . . . undertake no duty.” Absent a duty, it’s pretty much impossible to find a breach.
And Hupp’s claims also ran squarely into the federal Communications Decency Act. That law provides that a Web site operator cannot be deemed the publisher of third party content. Which means not only is the Web site operator immune from liability when a third party posts content, the operator is also immune from claims based on its failure to remove the content.
And of course, Hupp had the anti-slapp statute to contend with. When a lawsuit challenges First Amendment activity, the statute requires the court to dismiss it unless the plaintiff can establish a probability of prevailing. Given the tractor trailer sized holes in Hupp’s case, the court had no trouble finding he had no probability of success. It dismissed the case.
Perhaps Hupp should have literally slapped Murphy. His probability of success on that effort couldn’t have been any less than it was with the lawsuit.