Anti-SLAPP Law Doesn’t Apply to Foreign Speech by Foreigners

The case is a decision by Judge Susan Illston (N.D. Cal.) Friday in Doe v. Deutsche Lufthansa AG (see also a separate post this morning about the substantive issues in the case). A quick summary of the facts: In 2021, Doe and Roe—a gay couple living in Saudi Arabia, who were married in California in 2013—were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly disclosed that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities.

In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities.

Doe and Roe sued, alleging that Jamshed’s statements were actionable as disclosure of private facts, as intentional infliction of emotional distress, and other theories. Friday, Judge Illston concluded that California’s anti-SLAPP statute—which provides various protections for defendants in lawsuits based on speech on public matters—doesn’t apply to the case:

Lufthansa contends that Jamshed’s speech and conduct qualifies for protection under the anti-SLAPP statute as “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,” or “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.” Lufthansa argues that Jamshed spoke in a place open to the public (the Riyadh airport) and that he spoke about an issue of public interest (gay marriage in a country where homosexuality is illegal).

Plaintiffs contend that Lufthansa’s anti-SLAPP motion fails at the threshold because Lufthansa cannot show that the statement or conduct underlying their claims (Jamshed’s speech and conduct in Saudi Arabia) is protected under the United States or California Constitutions. Plaintiffs argue that because Lufthansa is a German corporation not residing in the United States, Lufthansa cannot assert constitutional protection for Jamshed’s speech and conduct. Plaintiffs cite Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc. (2020), in which the Supreme Court rejected a First Amendment challenge brought by foreign organizations who objected to a requirement, as a condition of receiving federal funding to combat HIV/AIDS abroad, to adopt a policy explicitly opposing prostitution and sex trafficking (referred to as the “Policy Requirement”)…. The Supreme Court stated that “it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution[,]” and that “it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations.” Thus, “[a]s foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.”

Lufthansa argues that although it is a foreign corporation, it is not a “foreign corporation operating abroad” under Agency for International Development because it “maintains a substantial presence in California.” While it is true that Lufthansa maintains a substantial presence in this State, the speech and conduct at issue here occurred in Saudi Arabia, not the United States. In Thunder Studios, Inc. v. Kazal (9th Cir. 2021), the Ninth Circuit held that the First Amendment protected the speech and speech-related conduct of two Australian citizens who were outside of the United States, but who directed their speech and speech-related conduct to a California resident. The court noted that the “[t]he First Amendment protects speech for the sake of both the speaker and the recipient[,]” and that “the First Amendment right to receive information includes the right to receive information from outside the United States.” Because the recipient of the speech and speech-related conduct was in California, and the speech and speech-related conduct occurred in California, the Court of Appeals held that the First Amendment protected that speech and speech-related conduct.

The Ninth Circuit distinguished cases that “involve speech outside the United States” and expressly did not “consider under what other circumstances a noncitizen living abroad has standing to claim the protections of the First Amendment.” Lufthansa has not cited any cases holding noncitizens or foreign corporations have standing to assert First Amendment claims for speech or speech-related conduct that occurs entirely abroad, nor was the Court able to locate any authority on the issue in its research….

Lufthansa also contends that there is no language in the anti-SLAPP statute that excludes foreign corporations from its ambit. Lufthansa is correct that California’s anti-SLAPP statute does not explicitly exclude foreign corporations from its protections. However, in order to prevail on an anti-SLAPP motion, a party must demonstrate that the cause of action alleged against them “arises from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution,” and thus Lufthansa must show that Jamshed’s speech and conduct is entitled to protection under the United States or California constitutions.

The Court concludes that under the facts of this case, where the defendant is a foreign corporation and Jamshed’s speech and speech-related conduct occurred in Saudi Arabia, California’s anti-SLAPP statute is not implicated.

It seems to me the First Amendment and anti-SLAPP laws should indeed apply to American courts, obviously acting in America, and applying American law. That strikes me as a different matter than the question in AID v. AOSI, which was whether the American government is bound by the First Amendment as to its decisions of when to fund foreigners’ speech in foreign countries. But obviously the court disagreed with me on this, and in any event the decision strikes me as worth noting.