I've just finished editing the CA Supreme Court's opinion in Flatley v. Mauro for inclusion in my PR Reader, and I was struck by how different my reaction is from reports of the case. The case involved a demand letter written by an Illinois lawyer threatening to sue an entertainer (Flatley) for rape of a woman with whom Flatley had spent the night in a Las Vegas hotel room.
Flatley sued Mauro, the lawyer, for extortion and related causes of action. Mauro moved to strike under California's anti-SLAPP statute, which provides an expedited way of getting read of claims based on the exercise of constitutional rights. The specific holding of the case is that the letter and related verbal demands were extortion as a matter of law, extortion is not protected speech, and thus the anti-SLAPP statute does not apply to the case.
In the course of the argument the Court rejected an analogy between California's litigation privilege and the scope of the anti-SLAPP statute. It pointed out that the privilege is an absolute protection against all tort actions other than malicious prosecution; the privilege protects things like perjury, subornation of perjury, submission of a forged will, fraud, and the like, none of which amounts to constitutionally protected activity. The distinction seems sound, though somewhat formal.
The opion has been reported here, here, and here as a pretty big victory of Flatley, and as creating a new exception to the anti-SLAPP statute. I don't agree with the latter characterization--once you decide the demand is extortion the only question is which prong of the section 425 analysis one chooses to deny the motion--and I wonder about the latter as well.
The Court points out how remarkably broad the litigation privilege is. So long as one treats the demand as ancillary to a suit that was in fact filed, the fact that the demand was extortion probably does not defeat the privilege (which, again, covers things like fraud and perjury). Perhaps I am missing something that one of you can point out (and my thanks in advance if you do), but in this case it seems that to win the motion is not to win the war, or even a very major battle in it. The litigation privilege seems likely to provide a defense that will be tough for the plaintiff to overcome.
Two related points. I think the breadth of the Civil Code section 47 privilege is very hard to defend, and if I am right that the provision applies to this case, then the case is an example of why. (More on the cost-benefit analysis of that provision later.) Second, the opinion attaches the demand letter as an appendix, and I think it will make an interesting and useful tool for classroom discussion.
DM