U.S. News & World Report v. Chiu

After the San Francisco City Attorney took issue with U.S. News & World Report’s annual hospital ranking, he opened an investigation against the company for alleged false or misleading advertising. As part of the investigation the City Attorney sent U.S. News investigatory subpoenas, demanding among other things, that U.S. News disclose its ranking methodology and supporting documentation.

U.S. News responded to the subpoenas by filing a lawsuit in federal court. It alleged that the City Attorney’s investigation and subpoenas were in retaliation for its protected speech and therefore violated the First Amendment and the California Constitution. The City Attorney, in turn, argued that U.S. News’ lawsuit was a meritless “strategic lawsuit against public participation” (SLAPP), intended merely to chill the City Attorney’s rights to speech and petition. The City Attorney thus moved to dismiss the case and strike it under California’s anti-SLAPP statute. The federal district court granted the City Attorney’s motions, both dismissing the case and, under the anti-SLAPP law, ordering U.S. News to pay for the City Attorney’s attorney fees.

On appeal before the U.S. Court of Appeals for the Ninth Circuit, FIRE’s friend-of-the-court brief argues that the district court was wrong to grant the City Attorney’s anti-SLAPP motion. First of all, the City Attorney–acting as a government official–does not have a “right” to speak or petition. Thus, the anti-SLAPP statute does not protect his speech like it might a private citizen’s. And second, even if he had some constitutional rights in the abstract, the City Attorney was not exercising a right to petition or speak when issuing investigatory subpoenas–part of the regular duties of this job. Giving government officials anti-SLAPP protection would only further chill people from challenging unconstitutional and illegal government actions, thereby threatening the very rights to petition and speak that anti-SLAPP laws are meant to protect.