APPEAL from an order of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC332406).
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
A 15-year-old high school student was pursuing a career in entertainment and maintained a Web site for that purpose. Several of his fellow students posted messages at the Web site, making derogatory comments about his perceived sexual orientation and threatening him with bodily harm.
The aggrieved student and his parents filed this action against the other students and their parents, alleging a statutory claim under California's hate crimes laws (Civ. Code, §§ 51.7, 52.1) and common law claims for defamation and intentional infliction of emotional distress. In response, one of the student-defendants and his parents filed a special motion to strike, contending that the action was a "strategic lawsuit against public participation" (SLAPP) (Code Civ. Proc., § 425.16; all undesignated section references are to that code unless otherwise indicated). The student-defendant had posted a message stating in part: "... I want to rip out your fucking heart and feed it to you.... I've... wanted to kill you. If I ever see you I'm... going to pound your head in with an ice pick. Fuck you, you dick- riding penis lover. I hope you burn in hell." The trial court denied the anti-SLAPP motion on the ground that the lawsuit did not arise out of a statement made in connection with a "public issue." (See § 425.16, subds. (b)(1), (e)(3).) Defendants appealed.
We affirm because defendants did not make the requisite showing that plaintiffs' complaint is subject to the anti-SLAPP statute. In particular, defendants did not demonstrate that the posted message is protected speech. Further, defendants contend the message was intended as "jocular humor." Assuming the message was a "joke" - played by one teenager on another - it does not concern a "public issue" under the statute. (See § 425.16, subds. (b)(1), (e)(3).)
The following allegations and evidence are taken from the pleadings and the papers submitted in the trial court with respect to the anti- SLAPP motion.
D.C., the student-plaintiff, attended Harvard-Westlake School (Harvard-Westlake), a private educational institution in Los Angeles. D.C. filed this action against several other students through a guardian ad litem, his father. D.C.'s father and mother also pleaded claims in their own right. (We will refer to D.C. and his parents collectively as plaintiffs.) Plaintiffs also named as defendants the parents of each student-defendant; the parents were sued as guardians ad litem and individually for their child's conduct (see Civ. Code, § 1714.1). (We refer to the student-defendants and their parents collectively as defendants.) Harvard-Westlake, its board of directors, and three school employees were also sued. The claims against them were arbitrated pursuant to an arbitration provision in the school's enrollment contract. (See D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836.)
Plaintiffs commenced this action on April 25, 2005. A first amended complaint (complaint) was filed on June 8, 2005, and alleged as follows.
While a student, D.C. pursued a career as a singer and an actor. He had a record album with a planned release date, had broadcast a song worldwide via satellite radio, and had played the leading role in a feature film presented at an internationally acclaimed film festival. He had also toured under the auspices of a nationally recognized radio network.
D.C. maintained a Web site to promote his entertainment career. The site allowed any member of the public to post comments in a "guestbook." Several students at Harvard-Westlake went to the Web site and posted threats against D.C. and made derogatory comments about him. One post read, "Faggot, I'm going to kill you." Another read, "[You need] a quick and painless death." One student wrote, "Fuck you in your fucking fuck hole." Another commented, "Fucking ass clown. Nigga what?" One post announced, "You are now officially wanted dead or alive." Another threatened, "I will personally unleash my manseed in those golden brown eyes."
The students who posted the threats sought to destroy D.C.'s life, threatened to murder him, and wanted to drive him out of Harvard- Westlake and the community in which he lived. They were motivated by a misperception of D.C.'s sexual orientation. When D.C.'s father read the threats at the Web site, he immediately informed Harvard-Westlake of the problem, believing that some of its students were responsible. The father also contacted the Los Angeles Police Department (LAPD), which, in turn, notified the Federal Bureau of Investigation.
On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to Northern California, where he went to a different educational institution. The Harvard-Westlake student newspaper, The Chronicle, ran at least two articles on the matter. One article disclosed D.C.'s new residential location and the name of the school he was attending. The article also disclosed that posts at the Web site had referred to D.C. as a "faggot." Harvard-Westlake did not suspend or expel any of the students who admitted posting the threats.
As a consequence of defendants' conduct, plaintiffs suffered personal and emotional injury, loss of income, the payment of medical expenses, the cost of moving, expenses for traveling back and forth from their new residential location to Los Angeles in order to support D.C.'s professional career commitments, and the related cost of housing while staying in Los Angeles.
The complaint contained five causes of action against defendants, only three of which are relevant here. First, plaintiffs alleged that defendants had violated their right under the state hate crimes laws to be free from "threat[s] of violence" motivated by perceived sexual orientation. (See Civ. Code, §§ 51.7, subd. (a), 52.1.)*fn1 Second, in a defamation claim, plaintiffs asserted that defendants had libeled D.C. by calling him a homosexual. Third, plaintiffs alleged a claim for intentional infliction of emotional distress, contending that defendants' conduct was outrageous and had caused plaintiffs to suffer severe emotional distress. All three of these causes of action were based on the posted threats and their effect on plaintiffs.
Plaintiffs named as defendants six students and their parents. Among those sued were R.R., a student, and his parents (collectively the R.'s).
On July 20, 2005, the R.'s filed an anti-SLAPP motion, contending that R.R.'s posted message was protected speech or, more specifically, a written statement or writing made in a public forum in connection with an issue of public interest. (See § 425.16, subd. (e)(3).) The motion was supported by several declarations, including ones from R.R. and his father. In opposing the motion, plaintiffs relied primarily on a declaration from D.C.'s father. Both sides submitted declarations from law enforcement personnel.
R.R. posted the following message on D.C.'s Web site: "Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've... wanted to kill you. If I ever see you I'm... going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."
Posts by other students included: (1) "I hate fags.... email@example.com.... gays are evil.com.... Hey fucker.... You are real gay"; (2) "Faggot, I'm going to kill you"; (3) "You are an oversized faggot.... I just want to hit you in the neck - hard.... [G]o to the 405 [freeway] bridge and jump"; (4) "I hate fags.... You need to be stopped"; (5) "I am looking forward to your death"; and (6) "Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive."
1. Declaration of D.C.'s Father
By way of background, D.C.'s father explained: "[D.C.], without exception, uses the pseudonym `Danny Alexander' in his entertainment career.
"... Nowhere on the subject website... nor in any publicity material, album packaging, or on film credits has [D.C.] been identified by his legal name.
"... Like many other aspiring entertainers, [D.C.] deliberately chose to use a stage name precisely so he could enjoy a `dual life,' one which afforded him the luxury of anonymity outside the entertainment industry. [¶]... [¶]
"... Of the thirty-four (34) outrageously offensive original postings made on [D.C.'s Web site] that are the subject of this lawsuit, twenty-three (23) falsely identify [D.C.] as a homosexual.
"... I am informed, believe, and thereon allege that those twenty-three (23) postings regarding sexual preference originated from no less than ten (10) distinct computer systems.
"... The website... was permanently removed from the Internet... the same day the postings were discovered. [¶]... [¶]
"...The LAPD disagreed with [a school administrator's] `intuition' that the school posed no danger to [D.C.] and therefore advised me to have [D.C.] stay home from school until a thorough investigation had been completed. [D.C.] did attend a PSAT exam at the school with great trepidation and only after I discussed the matter with the administration and stayed on site to watch him throughout the testing without causing any disturbance to students sitting for the college entrance examination. Other than that one examination, [D.C.] did not return to the school due to fear for his life. If the threats were nullified, it would have been our preference to have him continue to attend Harvard-Westlake and remain in Beverly Hills.
"...We waited... for an outcome to the investigation through the school and the authorities, but without obtaining the information necessary to insure our son's safety we were compelled to enroll [D.C.]... at another school in order to salvage what was left of his first semester of his critical junior year. Despite this enrollment we would have sought to have him return if we had been assured that he was safe from the vicious threats of violence and taunting as shown in the posts. I had to commute to Los Angeles from [Northern California] during the week and be away from my family which was incredibly stressful for the entire family and caused additional stress on... my wife over the concern for [D.C.] and his safety while I was gone.
"... Of the thirty-four (34) offensive postings originally posted, six (6) were perceived [as] death threats by me and my family. These included the one admitted to by [R.R.].... [¶]... [¶]
"... [R.R.'s message] in particular was the most evil and malicious of the postings and looked to come from a parent rather than a student. My family was terrified and made physically nauseous from the threat. We feared for the life of our fifteen year old child. The fact that others wanted to `one-up' each other as [R.R.] asserts in his declaration furthers our belief that the boys worked in concert to terrify my family like a gang of thugs driving us to pull our son from school and move. There was nothing `playful' in the post, and the fact that [R.R.] still believes this is alarming and renews our concerns for persons that offend him by sexual orientation or otherwise. [¶]... [¶]
"... Because [D.C.] was uprooted mid-semester in his junior year of high school, and because of the threat of death, its impact on his family, and continued stress, his school life and career were adversely affected. Further, due to the threats and gay vulgar lies posted [D.C.] started to suffer from frequent and severe panic attacks which required medical attention, and from which he still suffers occasionally to this date. For the first time in his life after the postings people approached [D.C.] to discuss what was posted and asked him about being gay. It was clear that others that read the posts believed the comments about his sexual orientation and felt concern for him and his safety. This also added to [D.C.'s] embarrassment and to his distress.
"... [O]ur family suffered: emotional distress; anxiety; sleeplessness; physical pain; insecurity; fear; pain and suffering; payment of attorneys' fees; payment of medical expenses; payment of moving expenses; payment of traveling and housing expenses to and from Los Angeles to support our business endeavors; [and] [D.C.]'s lost income....
"... [D.C.] suffered poor academic performance during his junior year, which compelled our family to hire a tutor and education therapist, and which ultimately resulted in his continued suffering from emotional distress and anxiety, and adversely affecting his self-esteem, school life and earning potential. In fact, the movie `Steal Me' [(Cineville & Picture Entertainment Corp. 2005)] in which [D.C.] had the lead was not released to the public until well after the malicious postings had occurred.
"The LAPD advised my family that [D.C.] should not return to school at [Harvard-Westlake] until a thorough investigation had been completed."
R.R. explained at length why he posted the message: "Prior to my sending of an email posting to [D.C.]..., I had no relationship with [him], and,... to my knowledge, I had seen him at Harvard Westlake from a distance on several occasions, walking through the halls, but never had verbal or physical contact with him. Prior to the email incident..., I attended a PSAT preparatory session which was attended by approximately seven students. I knew [D.C.] was one of these students. We did not interact with each other in any manner during this PSAT session. I had not met [D.C.] before that session; we had never been in the same class; and, to my knowledge, we never participated in the same school activities. Moreover, I had not heard anything about him. I had no knowledge of his acting or singing involvement, did not know his interests or habits, and was unaware of who his friends were at school. Prior to the... email incident, I had no opinion about [D.C.] whatsoever. I did not like or dislike him and certainly had no views about his gender identity, sexual orientation, or skills as a singer or actor. Likewise, I had never heard any fellow student convey any opinion about him generally, or with regards to any aspect of his life, including his sexual orientation. I certainly did not harbor any ill will against him or his family, and, in fact, the only reason I knew his name is that our school is very small and I know the name of almost every student in my class....
"... Sometime after I first saw [D.C.] at the PSAT session..., while I was at Harvard Westlake School, a fellow student suggested that I should `check out' the website of a fellow student, i.e. [D.C.] The student did not tell me the content of the website; did not ask me to post any messages on the website; did not tell me that he was going to post any messages on the website; and did not give me any information about [D.C.] My fellow student, did, however, suggest I look at the site in a tone of voice suggesting that there was something weird, strange, or far out about the website. My fellow student did not invite me to participate in any `conspiracy' and made no suggestion that I do anything but just take a look at the site.
"... After that school day, I returned home at my regular time. When I turned on my computer, I received an instant message from the fellow student providing me with an Internet link to the [D.C.] website. The instant message did not suggest that I post messages, or provide any suggestions about how I should respond to the website. In fact, at the time I received this message I was completely unaware that the site provided for the posting of messages....
"... Almost immediately after receiving the instant message, I used the link to see [D.C.'s] website because I was curious about what the interest was in the website. When I first entered [D.C.'s] website, I was greeted by a picture of him with music and singing playing in the background. When I surveyed the site with its links, it immediately revealed more pictures, that were very posed, and a biography of [D.C.'s] alleged accomplishments. In the site, [D.C.] describes himself in the way products are advertised. He described his eyes as `Golden Brown.' He describes his hair as `Midnight Brown.'... After listing his accomplishments, he is pictured with a shirt that prominently displays the word `SUCCESSFUL.' The site then links the viewer to [D.C.'s] fan mail which to this day includes obsequious fan messages that appear calculated to give the impression that [D.C.] is a person of extraordinary fame and talent.... [¶]... [¶]
"The messages refer to [D.C.] as `Danny Alexander' because the website itself uses a pseudo name rather than his real name, making it unclear as to whether the whole site is a spoof.
"... My initial response to the site was to be offended and put off by its `I am better than you' attitude and its blatant bragging and self promotion. In the past, I had spent time studying Buddhism, and in light of the Buddhist tradition of quiet understatement, the website's distinctly narcissistic tone was disturbing. On the other hand, I was a bit entertained by [the] weird, possibly satirical, tone of the site. I certainly appreciated why a fellow student would want me to `check this out.'
"... [D.C.'s] website also had a link that allowed a viewer to post public messages and to view the posting made to the website. The website invited postings. The postings included messages from admirers writing as if he were a famous movie star and singer. [D.C.] portrayed himself as a public figure. I then began looking at the posted messages. There were many messages, apparently from fellow students, that were hostile and derogatory, albeit jesting. I did not know the identity of the posting persons. I did, however, suspect that at least some of the messages were from Harvard Westlake students because the messages referred to Harvard Westlake.
"... I sensed that the other writers had a similar emotional response to the site that I had. As these postings became increasingly bizarre and weird, it became apparent to me that everyone was competing to see who could be the most outrageous. For example, one poster suggested that he was an `official' representative of the student body and that [D.C.] was wanted dead or alive. I thought the postings were funny, and I certainly didn't think that [D.C.], or any other rational person, would believe that he was wanted dead or alive. Likewise, another posting referred to [D.C.] as a `Nigga.' Of course, [D.C.] was obviously not a black American. Yet another posting referred to the poster's wish to `unleash my manseed in those golden brown eyes.' This appeared to be an obvious satire of [D.C.'s] own self description as the wonder boy with `golden brown' eyes.
"... That afternoon, I was in a playful mood and I decided to add my own message to the Internet graffiti contest that was apparently going on. I posted a message which stated: `Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've... wanted to kill you. If I ever see you I'm... going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.'
"... My motivations in sending this email had nothing to do with any perception of [D.C.'s] sexual orientation, and certainly did not reflect an intention to do him physical harm. As set forth above, I had no personal knowledge or belief about [D.C.'s] sexual orientation. No one ever told me he was gay, and I had no thoughts on the subject matter. My message is fanciful, hyperbolic, jocular, and taunting and was motivated by [D.C.'s] pompous, self aggrandizing, and narcissistic website - not his sexual orientation. My only other motivation, a bit more pathological, was to win the one-upmanship contest that was tacitly taking place between the message posters. Everything about the message is fanciful. I assumed that any rational person would understand that I was just inarticulately and offensively saying, `I am repulsed by your self promotional style.' I certainly did not think anyone would believe that they could eat their own heart after it was taken from their body. I assumed that a 10 year old child would understand that you would be dead if your heart was removed. I obviously didn't have school age children and I had never listened to any of [D.C.'s] songs. Paradoxically, my message states that my motivation was a hatred of [D.C.'s] song, not his sexual orientation, i.e., my message itself... belies the allegation in the complaint.
"... The complaint alleges that my motivation was my perception that [D.C.'s] sexual orientation was gay. As set forth above, I had no opinion regarding [D.C.'s] sexual orientation. More importantly, I wouldn't care less if he was gay. I have no animosity towards gays, and... even if I thought [D.C.] was gay, it couldn't be a basis for any hatred or threat.... [O]ne of my favorite relatives is openly homosexual and I have been quite vociferous in defending this relative from fundamentalist views that characterize homosexuality as a disease. In fact, one [of] my good friends at school is a member of the Gay- Straight Alliance. I have made my views clear that I think this student's involvement is `cool.' Likewise, I have walked side by side with gay couples in the AIDS walk, supporting their position, and I have worked through a church at a soup kitchen for AIDS patients, many of whom are gay.... I am not homophobic and the basis of my conduct was childishness and some repulsion to [D.C.'s] grandiose style - not his sexual orientation.
"... The next day after the offensive postings, at school, I heard students talking about the posts. The students expressed the view that the posts were a funny gag. No one took the posts seriously as a death threat or an accusation of homosexuality. The posts were treated as a goof. I did not participate in these conversations because I was ashamed of my participation. In retrospect, my conduct felt infantile, immature, and was beneath me. I felt ashamed that I would allow the desire for peer approval, `peer pressure,' to induce me into acting like an idiot.
"... Shortly after sending these messages, I again saw [D.C.] at the PSAT preparation class. He was not acting as if he were afraid that he was going to be killed. He appeared calm and participated in exactly the same manner as the preparation session before the Internet graffiti contest. We did not interact at all.... [¶]... [¶]
"... I wrote a letter of apology to [D.C.] and his family. The school provided me with the address of [D.C.'s] father and I sent the letter to that address. In that letter, I admit my email transmission and state: `I want you to know that I never intended to harm you or your family, and that I respect your career and what you are trying to do with your life.' At the end of that letter I stated: `If there is anything else I can do to atone for my actions, please let me know.' I never received a response to this letter. After sending this letter to [D.C.], I sent a copy to the Harvard Westlake School...."
3. Declaration of R.R.'s Father
R.R.'s father stated in part: "My son [R.R.] is 17 years old. Approximately two years ago, I purchased a computer for my son and gave it to him for his personal use as a gift. My son needed a computer to do school research and to be able to draft papers. Our family considered the computer essential to be able to communicate with teachers and other personnel regarding school work and school related affairs. Sometime shortly after I purchased this home computer, I counseled my son to be careful about being appropriate in his use of the computer. I have learned from my son that he used his home computer to send one of the messages which are referenced in the law suit.
"... [R.R.'s] computer is located in his bedroom. I do not have a password to any of his accounts, and... my son uses an account for emails different than the one that I use.... [T]here is no way for me to know the content of any email sent or received by [my] son unless he happens to tell me. Prior to my son's communication which is the subject of this lawsuit, I was not aware that he sent any messages with accusatory, threatening, or content. I never saw any such messages; my son never reported sending such messages; I never received any complaint about any such messages. Contrary to the allegations in the complaint, I never allowed or permitted my son to engage in the conduct alleged. I had no idea that he sent such messages; never suspected he sent such messages; and, because I did not have his password[,] I did not have any ability to read his emails. Had I known that [R.R.] sent this kind of message, I would have counseled him not to do so. I would have offered such counseling, and would have barred his access to the Internet if he did not agree to abstain, because I find the communications offensive - not because they might be technically illegal or subject to civil liability.
"... In fact, as soon as my wife... and I discovered the conduct alleged in the complaint, we terminated [R.R.'s] access to the Internet, instituted various punishments including grounding, no cell phone use (except for emergencies), [and] no car use and had him evaluated by a psychiatrist in a further effort to insure that such conduct was never repeated and the root cause, if any, was dealt with immediately.... [¶]...
"... Prior to this episode [R.R.] has never been the subject of any criminal complaint or juvenile complaint of any kind.... Our family (including [R.R.]) cooperated with the police investigation immediately without asserting our legal right to remain silent. They reported to us their conclusion that they did not regard [R.R.'s] statement as a real threat and did not intend to seek the filing of any kind of criminal case. [R.R.] has not been charged with a crime or any wrongdoing by any law enforcement entity....
"... I have never heard [R.R.] make any negative, derogatory, or hostile statements about homosexuals.... [¶]...
"... I have observed [R.R.] to be compassionate, well grounded, with many friends. To my knowledge, [R.R.] has never once gotten into a physical fight with anyone and he has never threatened to hurt anyone. [R.R.] is somewhat introverted and gentle, and he has an artistic fondness for music.... [R.R.'s] proclivity to humanistic and non- violent approaches to the human condition has been reflected in his past interest and practice of Buddhism and being a vegetarian."
4. Declaration of Another Student
The R.'s submitted a declaration from another Harvard-Westlake student who described some of the messages posted at D.C.'s Web site. For example, one post read in part: "You are so fucking orgasmic. I'm wet.... Oops I peed my pants. You look exactly like Britney.... Your career is bound to go nowhere." One student wrote: "You are the biggest fag in the HW class.... [T]hank you though.... [T]his will give everyone laughs for a long long time." In a second post, the same student said: "Hey [D.C.], I'm so excited to finally speak to you. We here at KY Jelly... wanted to know if [you] would be the spokesperson for our new anal lube.... Fucking ass clown. Nagga what?"
5. Law Enforcement Declarations
The deputy district attorney assigned to the criminal investigation submitted a declaration on behalf of the R.'s, stating that, based on the evidence, the district attorney's office declined to prosecute any of the students who had posted messages on D.C.'s Web site.
The police detective conducting the investigation also submitted a declaration in support of the motion, explaining that the LAPD "determined that [the] annoying and immature Internet communications did not meet the criteria for criminal prosecution." In a follow-up police report, the LAPD "determined that the emails were an expression of 1st Amendment rights and no crime."
Plaintiffs submitted a declaration from an employee in Harvard- Westlake's security department who had previously been an officer with the LAPD for 20 years. In the former officer's opinion, R.R.'s message constituted "a clear and specific threat of death" in violation of Penal Code section 653m. That statute provides: "Every person who, with intent to annoy,... makes contact by means of an electronic communication device with another and addresses to... the other person any threat to inflict injury to the person... is guilty of a misdemeanor." The former officer stated that the Web site posts "depict in my opinion a group attempting to antagonize the victim and evidence a group behavior to work in concert together to harass, annoy, and at times threaten with violence and intimidation a boy perceived to be gay. The fact that many discussed it at school and then were able to read others' comments and add additional posts over a two day period... furthers my belief that they worked together to intimidate the victim and his family."
The anti-SLAPP motion was heard on March 12, 2008, and taken under submission. By minute order dated May 6, 2008, the trial court denied the motion, concluding that the case did not involve a public issue. (See § 425.16, subds. (b)(1), (e)(3).) The R.'s appealed.
We review de novo the trial court's ruling on an anti-SLAPP motion. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The R.'s argue that R.R.'s posted message was "jocular humor" entitled to First Amendment protection under the anti-SLAPP statute. We disagree for two reasons. First, the R.'s evidence as to whether R.R.'s message was protected speech is self-contradictory. Accordingly, we cannot say they demonstrated that the message is protected speech. Second, assuming that R.R.'s message was a "joke" and thus constitutionally protected, it was not a statement made in connection with a "public issue" as that term is used in the anti-SLAPP statute. (See § 425.16, subds. (b)(1), (e)(3).) Rather, it was merely part of a "joke" among teenagers.
A. Protected Activity Under the Anti-SLAPP Statute
"`Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as "civil lawsuits... that are aimed at preventing citizens from exercising their political rights or punishing those who have done so."... [¶]... [¶]
"`SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff.... [O]ne of the common characteristics of a SLAPP suit is its lack of merit.... But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective.... As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished.'" (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 891.)
Under the anti-SLAPP statute, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1), italics added.) The statute is to "be broadly construed to encourage continued participation in free speech and petition activities." (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22; see § 425.16, subd. (a).)
"`The Legislature enacted the... statute to protect defendants... from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.'" (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1052.)
"`The First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law... abridging the freedom of speech." The hallmark of the protection of free speech is to allow "free trade in ideas" - even ideas that the overwhelming majority of people might find distasteful or discomforting.... [T]he First Amendment "ordinarily" denies a State "the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence."... The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech....
"`The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.... The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are `of such slight social value as a step to truth that any benefit that ...