California Anti-SLAPP Statute Doesn’t Apply to Claim of Politically Motivated Threatening Conduct

Anti-SLAPP statutes allow defendants who are sued based on their speech on matters of public concern to quickly challenge the sufficiency of plaintiffs’ claims. They are important tools in fighting legally meritless libel suits and other attempts to restrict legally protected speech. But they only apply to claims that are indeed based on such speech, and not claims that are based on non-speech conduct.

A short excerpt from yesterday’s long opinion by California Court of Appeal Justice Allison Danner, joined by Justices Mary Greenwood and Daniel Bromberg, in Khalil v. Steiner, applies this distinction. The plaintiffs—a young woman, her apparently 13-year-old sister, and their sister-in-law—”constructed a ‘Free Palestine’ sign out of shrubs and seaweed on a sand dune near Sand City known as ‘Scribble Hill,'” where it was visible from Highway 1 and the pedestrian path below the dune. Defendant, “who was cycling on the path, stopped his bicycle, climbed the dune, and began dismantling the sign while engaging in a heated verbal exchange with the young women.”

Each side accused the other of “supporting terrorism,” and the women began recording the encounter on a cell phone. They retreated down the dune and kicked sand on Steiner’s bicycle. Steiner followed, grabbed the cell phone …—allegedly also grabbing and restraining [one of the plaintiffs] in the process—and threw the phone toward the street, breaking it. After Steiner departed, plaintiffs reported the incident to the police and posted an edited version of the cell phone video to their social media.

Plaintiffs sued Steiner asserting causes of action for negligence, assault, battery, and violations of the Tom Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1) and the Ralph Civil Rights Act (Ralph Act) (Civ. Code, § 51.7). Steiner brought an anti-SLAPP motion to strike the complaint ….

The court concluded that the anti-SLAPP statute [Cal. Code Civ. Proc. § 425.16] didn’t apply here, because the claim was based on Steiner’s alleged physical conduct, and not speech on matters of public interest:

Section 425.16(e)(3) defines protected activity to include “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.” Section 425.16(e)(4) defines protected activity to include “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.” …

We agree with the trial court’s assessment that “much of” Steiner’s “speech and activity in taking down the message on the sand dune is protected under the First Amendment.” Steiner’s initial conduct during the encounter at Scribble Hill consisted of (1) engaging in a heated oral exchange with three individuals about their public display of support for the Palestinian cause during a time of heightened public awareness and debate over the Israeli-Palestinian conflict, and (2) physically disassembling the sticks and shrubs that made up the disputed message.

The timing of these acts shortly after the October 7, 2023 attack by Hamas on Israel, the publicly accessible and highly visible location on Scribble Hill, and the subject matter of the dispute, place Steiner’s oral statements and conduct dismantling plaintiffs’ sign within the statutory framework for “statement[s] … made in a place open to the public or a public forum in connection with an issue of public interest.” Further, the close nexus between Steiner’s exercise of his right of free speech and the asserted issue of public interest (disagreeing and attempting to undo the “‘Free Palestine'” message visible to passersby) fulfills the “‘in connection with’ requirement.” …] But Steiner must not only show that his conduct falls within one of the categories set out in section 425.16(e), but that each challenged “cause of action arises from that protected conduct.” …

The complaint alleged that on the date in question, Steiner “w[as] negligent in that [he] carelessly failed to exercise due care by confronting and engaging in a verbal confrontation with plaintiffs as alleged herein.” The cause of action further “reallege[d] and incorporate[d] by reference” the allegations previously set forth. These allegations included that Steiner “approached the plaintiffs and called them terrorists,” “accused [them] of being members or supporters of Hamas” and of “killing babies and be-heading children,” “started violently dismantling their sign and charged directly at the girls while continuing to threaten them,” and “accosted [the 13-year-old plaintiff], grabbed her around the neck and waist, and threw her cell phone on the bike path.” …

Construing the allegations of the complaint liberally (as we must) for purposes of evaluating the facts upon which the negligence claim is based, we read the negligence claim alleging a failure to exercise due care “by confronting and engaging in a verbal confrontation with plaintiffs as alleged herein” as based upon the full range of conduct described in the confrontation…. The declarations submitted in opposition to and in support of the motion characterize differently the nature and intensity of the words that were spoken and Steiner’s physical conduct but generally reinforce our conclusion that the confrontation encompassed more than a heated exchange of words….

As our Supreme Court has explained, “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” “A cause of action may be ‘triggered by’ or associated with a protected act, but it does not necessarily mean the cause of action arises from that act.”

As alleged, Steiner’s expressions of disagreement with plaintiffs’ message by disputing and dismantling the sign did not occur in a vacuum but unfolded concurrently with alleged unlawful conduct comprising physical aggression and oral intimidation….. Plaintiffs might not be “entitled to legal protection against” a passerby engaging in offensive speech while criticizing a political protest message, but they are entitled to legal protection from allegedly threatening and intimidating conduct that escalates into a physical attack….

The court held much the same as to the claims under the Bane Act (which allows lawsuits “against a person, ‘whether or not acting under color of law,’ who ‘interferes by threat, intimidation, or coercion … with the exercise or enjoyment … of rights secured by the Constitution”) and the Ralph Act (which provides that “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of” “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status”):

The alleged conduct giving rise to plaintiffs’ Ralph Act claim is unambiguously the commission of “a violent act” against plaintiffs and their property…. Furthermore, plaintiffs have alleged that this conduct was substantially motivated by Steiner’s perception of plaintiffs as being Palestinian or of Palestinian national origin, as also evidenced by [plaintiffs’] declarations that as Steiner approached and dismantled the sign, he accused them of being “‘peak Palestinian'” and of supporting terrorism and Hamas….

Given the nature of the alleged conduct underlying the cause of action, Steiner’s contention that the claim is based solely on political speech and expressive conduct is unpersuasive. Steiner has failed to show that the challenged cause of action arises from his protected conduct debating plaintiffs’ ideology and attempting to erase their public protest message, as opposed to his alleged acts of physical aggression. Put differently, Steiner’s expressions of political disagreement and identification of plaintiffs as Muslim or Palestinian women did not give rise to the Ralph Act claim but are arguably revelatory of his motive for attacking them….

And the court held the same as to plaintiffs’ assault claim, which was based on Steiner’s allegedly threatening conduct. (Steiner hadn’t challenged the trial court’s finding that the anti-SLAPP statute didn’t apply to plaintiffs’ battery claims.)