O.E. was an eighth-grade student at St. Mary’s School in Aliso Viejo in Orange County, California. In violation of the contract he signed when he enrolled, he shared a “collection of rap lyrics” that contained racist, sexist, sexual and violent lyrics with a fellow student. He was expelled and enrolled in another private school, JSerra Catholic High School (JSerra) in San Juan Capistrano.

St. Mary’s contract with students carries notice that expulsions are “reportable to prospective schools.” Thus, the school notified O.E.’s new school about his expulsion, even though it had previously written him a recommendation. JSerra then reversed his acceptance. St. Mary’s also sent an email to approximately 80 of its students’ parents, which described the unacceptable lyrics and said that O.E. “was immediately removed from class and subsequently has been suspended.”

O.E. and his mother filed a complaint against St. Mary’s putting forward six causes of action: public disclosure of private facts, invasion of privacy, negligent hiring of personnel, negligence, intentional infliction of emotional distress, and tortious and intentional interference with contractual relations.

St. Mary’s moved to strike the whole complaint under California’s anti-SLAPP statute, California Civil Code §425.16. That Code section stands for Strategic Lawsuits Against Public Participation and allows motions to strike complaints that arise from exercising the rights of petition and free speech. The school argued that the entire complaint was protected under §425.16. Rather than focusing on its own conduct, however, the school defended its right to stop rap lyrics because they threatened students and posed a safety risk, making their actions appropriate as a “matter of public interest that would be protected under the anti-SLAPP statute. The plaintiffs opposed St. Mary’s motion.

Orange County Superior Court Judge Glenn R. Salter denied St. Mary’s motion because it focused on the rap lyrics but did not show that informing O.E.’s new school about his expulsion was a protected free speech activity. A unanimous three-justice panel from Division Three of California’s Fourth Appellate District affirmed Salter on March 12. In the unpublished opinion authored by Justice Joanne Motoike on March 12, the appellate court began by explaining the anti-SLAPP statute.

She explained that courts use a two-step process to evaluate anti-SLAPP claims. First, the moving defendants, here the plaintiffs, have the burden of showing that defendants were engaged in a protected activity. Second, if the first step is accomplished, plaintiffs must show “there is a probability that they will prevail on the claim.

Justice Motoike reviewed plaintiffs’ trial court arguments and concluded that St. Mary’s “failed to provide any substantive legal analysis of its alleged disclosures of O.E.’s expulsion to third parties.” “Without more,” the Justice wrote, “we are left to speculate as to what this conduct may be and how it may be protected under the anti-SLAPP statute.” She also noted that St. Mary’s reply brief failed to provide any clarification. Therefore, the opinion concluded that plaintiffs failed to meet the required burden of proof.

Next, the opinion further detailed what, under the anti-SLAPP statute, constitutes protected free speech activities. She said four categories of speech would be protected under the U.S. or California Constitutions, and concluded that only one – the “so-called catchall provision” is relevant here. That clause says that §425.16 (e) protects “any other conduct in furtherance of the exercise of the constitutional right…of free speech in connection with a public issue or an issue of public interest.”

This provision, the opinion explained, also calls for a two-part analysis: examination of the content of the speech to discover the implications of the speech in question and reviewing the “functional relationship between the speech and the public conversation about some matter of public interest.” She wrote that here, the content of the communication between St. Mary’s and JSerra, “implicated only O.E.’s expulsion, not the underlying reasons” for it. Therefore, Motoike concluded that the expulsion was not an issue of public interest.

O.E. is a minor and is not in the public eye, the opinion rationalized. It was only a matter of concern to the speaker and relatively few others. In addition, she discounted the safety and school governance reasons because none of these were actually covered in St. Mary’s communication with JSerra. In fact, Motoike wrote, the communication between St. Mary’s and the new school “did not seek public discussion of anything.” Instead, its purposes were only to notify JSerra about the expulsion, inform them of St. Mary’s policies, and protect its own reputation. There was no mention of the actual misconduct.

As a result, the opinion concluded that St. Mary’s “did not carry its burden of showing the challenged conduct arose from (the) protected activity in which it engaged.” She also explained that as a result, the appellate court “need not address O.E’s likelihood of prevailing on the merits…”

The opinion also discussed the “narrow scope” of its ruling. The justices emphasized that “nothing in our opinion limits the ability of schools to properly disclose student discipline information to other schools” because they were not argued either in trial court or on appeal. Thus she said the court would not express an opinion on the merits of the lawsuit.

It seems that a more thorough discussion of O.E.’s unacceptable sharing of rap lyrics to his new school would have further clarified the limits of speech protected under the anti-SLAPP statute.