Jens B. Koepke
Counsel, Complex Appellate Litigation Group LLP
appellate law (specialist), intellectual property, entertainment
Phone: (424) 738-5563
Email: jens.koepke@calg.com
UCLA Law School
Jens is a certified appellate specialist, and the incoming chair for the Appellate Courts Section of the Los Angeles County Bar Association.
One of the more amorphous and unpredictable legal issues in anti-SLAPP law has been what counts as a "public issue." In FilmOn, a unanimous California Supreme Court tried to clarify and seemingly narrow the definition of a "public issue." However, the two-part test the court devised still contains considerable vagueness. So it's not clear that practitioners can now more definitively predict whether a court will find a public issue exists in their case. Nevertheless, FilmOn is required reading for all civil litigators.
Both subdivisions (e)(3) and (e)(4) of the anti-SLAPP statute require defendants to show that their statements or conduct were "in connection with an issue of public interest" or "in connection with a public issue." Code Civ. Proc., Section 425.16(e)(3) & (e)(4).) However, the statute doesn't define what a "public issue" is. This has led the Courts of Appeal to come up with myriad descriptions or definitions of a "public issue," and to courts reaching contradictory or divergent outcomes on whether the statute applies. In FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (2019), the Supreme Court appears to want to create some order in this chaos.
Plaintiff FilmOn distributed web-based entertainment programming over various websites. Defendant DoubleVerify provided online tracking, verification and "brand safety" services to internet advertisers. FilmOn alleged that DoubleVerify had disparaged its network in confidential reports to DoubleVerify's paying clients by applying a "tag" (or description/label of the website's content) of "adult content" or "copyright infringement" to some of FilmOn's websites. FilmOn, 439 P.3d at 1158-59. DoubleVerify filed an anti-SLAPP motion, asserting its private reports constituted conduct or statements related to a public issue under subdivision (e)(4). The trial court granted the motion and the Court of Appeal affirmed, ruling that "the public ha[s] a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials." Id. at 1160.
The Supreme Court reversed in a unanimous decision. Focusing on the catchall provision in (e)(4), the court held that the public issue "inquiry" "calls for a two-part analysis":
• First, what is the public issue "the speech in question implicates -- a question we answer by looking to the content of the speech." FilmOn, 439 P.3d at 1165.
• Second, "we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful." Id.
In this way, the Supreme Court confirmed that the statement's content and context (including the identity of the speaker, the audience, and the purpose of the speech) play a role in this two-step analysis. Id. at 1158-59, 1164.
What Is a Public Issue? As to the first step -- is there a public issue -- the Supreme Court affirmed certain considerations put forward by the Courts of Appeal, such as (a) whether the "subject of the speech" was a person in the public eye or could affect large numbers of people, and (b) whether the activity occurred in the context of an ongoing controversy or affected a community in a way similar to that of a governmental entity. Id. at 1162. FilmOn also specifically affirmed the guidelines/attributes of a public issue laid out in Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132-33 (2003). See FilmOn, 439 P.2d at 1165.
Functional Connection Between Statement and Public Issue. As to the second step -- the functional relationship between the statement and the asserted public issue -- the Supreme Court held that the catchall provision "demands 'some degree of closeness' between the challenged statements and the asserted public interest." FilmOn, 439 P.2d at 1165, quoting Weinberg. It is not enough that the defendant's statement refers to a subject of widespread public interest; "the statement must in some manner itself contribute to the public debate." Id. at 1166, approving Wilbanks v. Wolk, 121 Cal. App. 4th 883, 898 (2004). The Supreme Court explained that contributing to the public debate means that through their statements or conduct defendants "participated in, or furthered, the discourse that makes an issue one of public interest." Id. at 1166. Also, defendants cannot rely on a "'synecdoche theory' of public interest, [i.e.] defining their narrow dispute by its slight reference to the broader public issue." Id. at 1167; see also Rand Resources, LLC v. City of Carson, 6 Cal. 5th 610, 625 (2019) (connection not enough if "speech at hand ... may conceivably have indirect consequences for [public issue]").
FilmOn also conspicuously ignored the broad language in Nygård, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008), which said that a public issue "is any issue in which the public is interested," even if insignificant. Id. at 1042. Some Courts of Appeal have relied on Nygård's broad definition to hold that any statement about a person in the public eye is a matter of public interest. See, e.g., Serova v. Sony Music Entertainment, 26 Cal. App. 5th 759, 772 (2018); Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 677-78 (2010).
Indeed, while Nygård relied heavily on the anti-SLAPP statute's preamble that says that its provisions "shall be construed broadly" (Nygård, 159 Cal. App. 4th at 1039-40), the FilmOn Supreme Court made nary a mention of the broad construction language.
In fact, instead of a broad application of tests, the Supreme Court concluded that, since the (e)(4) catchall provision is "less firmly anchored to any particular context" than the other (e) subdivisions, "courts should engage in a relatively careful analysis of whether a particular statement" is covered. FilmOn, 439 P.2d at 1161-62 (emphasis added).
The Supreme Court ultimately reversed, holding there was no "public issue" under its two-part test, because "DoubleVerify's reports are too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision." Id. at 1159.
What can practitioners glean from FilmOn, and its take on a "public issue?"
• First, FilmOn does appear to narrow the definition of "public issue." Its rejection of the synecdoche theory, its mandate of a close functional relationship between defendants' statements and the purported public issue, its approval of Weinberg and its progeny, and its ignoring of Nygård all point to closer line drawing. It will be much harder for defendants to argue that simply because their conduct or statements could implicate some broader issue that the public might be interested in, it should be covered under the statute.
Indeed, the court tellingly explained (disapprovingly) that the "travails of the lower courts demonstrate" that "virtually always" defendants succeed in drawing a line, "however tenuous," connecting their speech to an abstract issue of public interest. FilmOn, 439 P.2d at 1165.
• Second, however, the court's insistence that one must look at the content of the speech and the context in which it was made in applying the two-part test opens a broad canvas for clever defendants' attorneys to paint upon. The court insisted that "no single element" of its analysis "is dispositive." Id. at 1167.
Thus, even though the specific statements or conduct may seem far removed from a current controversy or debate of a public issue, the broader context should allow many defendants' attorneys to still come up with colorable arguments of why a public issue is implicated. Given that denials of anti-SLAPP motions still remain immediately appealable, it is not clear whether FilmOn's multi-factored test will stem the tide of anti-SLAPP motions and subsequent appeals that argue a public issue is involved.
In fact, when the Supreme Court somewhat restated its holding toward the end of its opinion, it both tried to show it was narrowing the definition of a public issue, but also showed how much wiggle room still remains: "[A] court must consider whether a statement -- including the identity of its speaker, for example, or the audience sought -- contributes to or furthers the public conversation on an issue of public interest. It is by carefully observing this wedding of content and context that we can discern if conduct is "in furtherance of" free speech "in connection with" a public issue or issue of public interest." Id. at 1168.
In FilmOn, the Supreme Court appears to have tried to limit the sprawling reach of "public issue" in anti-SLAPP cases. Whether trial courts and Courts of Appeal read it that way remains to be seen. And whether that stems the tide of anti-SLAPP public issue motions is questionable.