My response to your question is that the plaintiff doesn’t get to come back with evidence to prove that the statements were libelous unless he can first meet his burden under the anti-slapp statute. Specifically, if the lawsuit is based on petitioning activity, the plaintiff has to come back not with enough evidence of defamation, but by a preponderance of the evidence must show that the petitioning lacked a reasonable factual or legal basis. The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the slapp suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

Anti-SLAPP immunity, when it applies, is controlling.

The Conditions: …If the author can demonstrate “reasonable factual and legal basis” for her assertions and her assertions are viewed by the court as an “exercise of right to petition” then the author is entitled to the qualified immunity provided under the anti-SLAPP statute.

I think the defense is asking a lot of the court primarily because finding for the defendant would mean making a precedent that few would feel comfortable living with until the legislature spoke again to qualify and clarify. … unless the legislative record already supports the broad interpretation the defense is arguing.

I should add that, if you look at my live blog, you’ll see that some of the justices are concerned that extending the anti-SLAPP law to the media could obliterate libel. But I don’t think that’s Harvey Shapiro’s argument, and libel has somehow survived in California, where SLAPP protection has been extended to news organizations.

For the foregoing reasons, the order of the
Superior Court denying the defendant’s special motion
to dismiss should he reversed. Because Hollander has
already demonstrated a reasonable basis for the
statements for which she has been sued, this Court
should order that her special motion to dismiss be
granted. In the alternative, the case should be
remanded to the Superior Court to allow the plaintiff
a chance to show, by a preponderance of the evidence,
(1) that Hollander’s exercise of her right to petition
was devoid of any reasonable factual support or any
aryuable basis in law and (2) caused him actual injury.

ACLU Amici brief

If the author can demonstrate “reasonable factual and legal basis” for her assertions and her assertions are viewed by the court as an “exercise of right to petition” then the author is entitled to the qualified immunity provided under the anti-SLAPP statute.

In other words, if she qualifies under the anti-SLAPP statute as a petitioner, then she need only to demonstrate her assertions have a “reasonable factual and legal basis.” If she does not qualify under the anti-SLAPP statute as a petitioner she must defend against a defamation case made by the plaintiff that attempts to prove the elements of a defamation claim, which must be demonstrated to the standard of “a preponderance of the evidence” (just barely more likley than not.)

Fredda Hollander is an example of a personal sacrifice that is made for the public good.

After a multi-million dollar judgment won by Judge Murphy, The Herald appears quite careful to avoid litigation. It’s style is more robust than its substance.

Our society needs a robust, active, adventuresome press, particularly amongst other reasons, to protect it from the many who attempt to selfishly exploit our civilization.

We need brave people such as Fredda Hollander who was in support of the good principles of citizens in the neighborhood where she reported and wrote as a journalist.