Can the government weaponize an anti-SLAPP statute?
On Tuesday, Pacific Legal Foundation attorney Caitlyn Kinard urged a California court to strengthen First Amendment protections for Americans who find themselves targeted by the government for their speech.
Kinard argued before California’s Third District Court of Appeal in a case that asks whether a government agency can use the state anti-SLAPP (Strategic Lawsuits Against Public Participation) statute to stop a citizen from challenging its actions in court. The case centers on one California farmer who fought back when the government enforced a policy that had never been published.
Meet Spencer Defty
Spencer Defty is exactly the kind of small business owner California’s environmental regulators should celebrate. As owner of Diamond D General Engineering, a Woodland-based contracting company, Defty has spent decades proving that construction and agriculture can coexist with environmental responsibility—planting over 500 trees, upgrading his entire equipment fleet to meet clean-air diesel standards, and installing a solar energy system that prevents 700,000 pounds of CO2 from entering the atmosphere each year. In 2009, the California Air Resources Board even recognized Diamond D with a Small Business Excellence Award.
Yet today, he finds himself in the crosshairs of a government agency pursuing him for alleged violations of air quality laws.
Breaking a rule that was never published
In early 2024, the Yolo-Solano Air Quality Management District issued Notices of Violation against Defty and his businesses. At a settlement meeting, the District revealed “Policy 24,” an unpublished policy that rewrote longstanding exemptions for agricultural services, limiting them to work done “on the farm, by the farmer.”
Because Defty’s business provides agricultural services on a contract basis to other farmers and ranchers, Policy 24 effectively eliminated the exemptions he had long relied on, exposing him to violations for work he had every reason to believe was legal.
When Defty said he intended to challenge it in court, the District filed an enforcement action and eventually moved to strike his claims under California’s anti-SLAPP statute—a law designed to protect individuals from being silenced by powerful parties that use litigation as a weapon. The trial court denied the motion, and the District appealed.
The constitutional stakes
Anti-SLAPP laws are designed to protect individuals from meritless lawsuits filed to intimidate and financially drain them into silence. They serve as a shield for ordinary people exercising their First Amendment rights.
Defty’s case is an example of how, as PLF’s brief puts it, “a government agency [is] claiming First Amendment protection to do what the First Amendment forbids—shutting down legitimate claims against government action.”
The power imbalance here is hard to miss: “Unlike the District, [Defty has] limited resources to exercise [his] rights, which is why anti-SLAPP statutes typically protect individuals rather than government entities.”
By invoking an anti-SLAPP statute, the government is effectively using a law designed to promote public participation as a weapon to silence a citizen who simply wants his day in court.
PLF at oral argument
In a rare move, PLF was permitted to join the case’s parties to argue as amicus curiae—a “friend of the court”—in California’s Third District Court of Appeal. Attorney Caitlyn Kinard was granted five minutes to explain why a government agency invoking anti-SLAPP protections to block judicial review of its own enforcement actions violates the First Amendment rights of the very citizens those laws were designed to protect.
At oral argument, Kinard urged the three-judge panel to scrutinize any situation where a government agency acts as both a regulator and a party seeking anti-SLAPP protections. She also emphasized that allowing the government to invoke anti-SLAPP statutes in cases like this imposes an extraordinary burden on ordinary citizens, who could end up self-censoring out of fear that they could be maliciously targeted under the statute.
“If the government has this much power in enforcement actions, ordinary citizens will be chilled from bringing legitimate claims against the government,” Kinard said after oral argument. “We hope the court agrees that what happened to Spencer Defty is exactly the kind of abuse anti-SLAPP laws were created to prevent.”
The court agrees
PLF’s argument prevailed. In a published decision issued April 27, the court ruled in Defty’s favor, affirming that the District’s anti-SLAPP motion was improper. The court found that Defty wasn’t challenging the government’s speech or protected activity; he was challenging the validity of a policy that was never properly adopted. The ruling clarifies that California’s anti-SLAPP statute cannot be used as a shield to protect government agencies from legitimate legal challenges to their own conduct.
