Anti-SLAPP Statutes and Consumer Review Protection
A pediatric dentist sued a father and mother over a Yelp review of their son's appointment, one that accused her of using mercury laden fillings and nitrous oxide without adequate disclosure. Only the father had actually written it. Wong v. Jing, 189 Cal. App. 4th 1354 (2010), shows what an anti-SLAPP statute actually does with a case like that, and it is a narrower thing than the phrase "consumer review protection" tends to suggest.
California's statute works in two steps. A defendant first has to show the challenged statement was made in a public forum on an issue of public interest, a showing the appellate court found easy here: Yelp is exactly that kind of forum, and the safety of dental anesthesia and amalgam fillings for young children is exactly that kind of issue. Once the defendant clears that bar, the burden shifts to the plaintiff to show a probability she will actually prevail on the merits. Wong met that burden as to the father, submitting her own sworn account of what she had disclosed and how she had treated the child, enough to let her defamation claim against him proceed past the motion and toward a jury. She did not meet it as to the mother, who had not written the review at all, and her separate emotional distress claims fell to the same motion that let the core defamation claim survive. One filing, three different outcomes, because the statute is not an immunity switch. It is a filter that lets a plaintiff with real evidence through and strips out everything built on top of a claim that cannot support itself.
That filtering function only works where a court will actually apply it, and for two decades the federal circuits have disagreed about whether a state's own anti-SLAPP statute belongs in federal court at all. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), settled the question for the Ninth Circuit early and has held up since, even though the case itself had nothing to do with a consumer review: a whistleblower's qui tam suit against a defense contractor under the False Claims Act, where the anti-SLAPP question arose only because the contractor filed its own state law counterclaims back. Finding no direct collision between California's special motion to strike and the Federal Rules of Civil Procedure governing pretrial dismissal, the panel reversed and remanded, letting the state statute apply in federal court.
CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (9th Cir. 2022), tested that holding against a defamation suit a private prison operator brought over statements linking it to family separations at the border, and reaffirmed Newsham on essentially the same reasoning twenty three years later, affirming dismissal of the family-separation claims while vacating and remanding a separate set of claims over the operator's lobbying that the district court had never reached. The Ninth Circuit itself awarded no fees, leaving each side to bear its own costs on appeal; it was the district court, on remand, that later ordered the operator to pay the defendants forty five thousand six hundred thirty dollars under the fee-shifting provision California's statute gives a defendant who wins the motion.
The D.C. and Fifth Circuits looked at the identical question and reached the opposite answer for reasons that track the disagreement over what an anti-SLAPP motion actually is. Abbas v. Foreign Policy Group, LLC and Klocke v. Watson both treated the special motion as functionally redundant with an ordinary Rule 12 or Rule 56 motion, a state mechanism aimed at the identical dismiss-before-trial question the Federal Rules were already built to answer, which under Erie leaves nothing left for the state version to add once the Federal Rules are in play.
The First Circuit went the other way a decade earlier still. A Maine elementary school principal accused of mistreating students sued the school board and union that had terminated her, over due process, and separately sued the individual employees who had reported her, over state law defamation. Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010), held that Maine's own anti-SLAPP statute had to be applied to those defamation claims, reasoning not from Newsham's direct-collision test but from the two step framework Shady Grove supplies: the state statute is not sufficiently broad to control the same question the Federal Rules answer, and applying it serves Erie's twin aims without inviting forum shopping. A defendant sued over a negative review in a diversity case gets an early, fee shifting motion built for exactly that fact pattern if her case lands in California, Maine, or most of the other states the First and Ninth Circuits cover, and gets none of it if it lands in the District of Columbia or, on facts like Klocke's own Texas dispute, the Fifth Circuit, regardless of how strong or weak the underlying speech claim happens to be.
A second and entirely separate doctrine protects the platform hosting the review rather than the person who wrote it, and the two protections do not overlap the way they might seem to. Hassell v. Bird, 5 Cal. 5th 522 (2018), arose after an attorney won a default judgment against a former client, a judgment that did more than award damages: it ordered the client to remove her Yelp reviews and separately ordered Yelp itself, never named as a defendant and never given a chance to contest anything, to remove them within seven business days. Yelp refused once it was served, then moved to have that part of the order set aside.
California's Supreme Court reversed the removal order as to Yelp, but it took some counting to get there: the court divided four to three on the judgment itself and three-one-three on the reasoning behind it. Three justices reasoned that Section 230 of the Communications Decency Act shields a platform from being conscripted into removing content through a judgment entered in a case it was never a party to; a fourth, Justice Kruger, concurred in that same judgment on an entirely different, older ground, that a nonparty is entitled to its own day in court before any judgment can bind it, writing that reaching the Section 230 question at all was unnecessary. The reviewer's own liability for the review stood either way. Yelp's obligation to act on a court order it never had a chance to contest did not, on a rationale only three of the seven justices actually signed onto.
Between an anti-SLAPP motion that protects the reviewer and Section 230 immunity that protects the platform, what neither doctrine reaches is the reviewer sued somewhere without the first protection and outside the platform's own reach entirely, a small business owner in one of the roughly ten states with no anti-SLAPP statute at all, sued in that state's own courts by a contractor or a landlord unhappy with an honest account of a bad job. CoreCivic is the clearest illustration of what a defendant gets when the doctrine does reach her. Having sued two of its own critics over public statements about its own business, CoreCivic ended up on the losing end of its own lawsuit and paying their legal bills for it.