D.C.

The majority affirms the denial of the anti-SLAPP (strategic lawsuit against public participation) motion on the grounds that R.R.’s post (1) was a “true threat” and therefore was not constitutionally protected, and (2) was not in connection with an issue of public interest. I disagree with both conclusions and with the majority’s reasoning, which alters the legal landscape to the severe detriment of First Amendment rights.

In deciding that the post was unprotected, the majority holds defendants to an evidentiary standard that conflicts with controlling California Supreme Court precedent, disregards defendants’ evidence on the basis of invalid factual inferences and unsupported legal theories, and ignores the relevant case law by failing to consider the entire factual context in which R.R.’s post occurred. The majority does all of this in the name of protecting hate crime victims (maj. opn., ante, at p. 1224), but the majority acknowledges that because this lawsuit is still at the pleading stage, it may turn out that the suit does not involve a hate crime at all (maj. opn., ante, at pp. 1224, 1225).

I share with the majority the view that R.R.’s post, like many that preceded and…

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 bum in hell.” The trial court denied the…