The short answer. If you sue someone over what they posted, they can file an anti SLAPP motion asking the court to dismiss the case early. If the speech relates to a public issue and you cannot show your case has at least minimal merit, the case is dismissed and you are generally ordered to pay the defendant's attorney fees.
Why the law exists
California passed its anti SLAPP statute, Code of Civil Procedure section 425.16, to stop powerful parties from using expensive lawsuits to silence critics, journalists and activists. It is one of the strongest such laws in the country, and it does important work protecting real speech.
The problem for people targeted by false posts is that the same tool is available to someone who posts lies about a private person, as long as the post can be connected to a matter of public interest.
How the motion works
Step one: is it protected activity?
The defendant must show your claim arises from protected activity. Under section 425.16(e), that includes statements in a public forum in connection with an issue of public interest, and other conduct in furtherance of free speech on a public issue. Courts have treated public websites as public forums. Whether the topic is of public interest depends on the content and context of the statement (FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (2019)).
Step two: can you show a probability of prevailing?
If step one is met, you must show your claim is legally sufficient and supported by evidence that, if believed, would win. Courts describe this as showing the claim has minimal merit (Navellier v. Sletten, 29 Cal.4th 82 (2002)). For defamation, that means evidence on every element, including that the statement is false.
The parts that hurt victims most
- Fee shifting. A defendant who wins the motion is entitled to attorney fees and costs (section 425.16(c)). A plaintiff recovers fees only if the motion was frivolous or meant solely to delay.
- Discovery stops. Once the motion is filed, discovery is generally stayed (section 425.16(g)), even when the evidence you need is in the defendant's hands.
- Immediate appeal. An order on the motion can be appealed right away (section 425.16(i)), which can delay a case for a year or more.
- Timing. The motion is generally due within 60 days of service of the complaint (section 425.16(f)), so it often comes before you can build your record.
Questions to ask a lawyer before you sue
- Could this post be seen as connected to a public issue or a matter of public interest?
- What evidence do I already have that each statement is false, without needing discovery?
- Are the statements clearly factual, or could a court read them as opinion?
- What would a fee award look like if we lost the motion?
- Are there routes that avoid the risk, such as copyright, platform rules or a criminal report?
What Right to Remove proposes
We support anti SLAPP protection for speech on public issues. Our proposal asks the Legislature to end fee awards against private individuals who bring good faith claims over statements that turn out to be false, so that the fear of a fee award does not keep people from clearing their names.