Earlier this week, the United States Supreme Court issued a decision in the case of Rehberg v. Palk upholding absolute immunity for witnesses at federal grand jury proceedings. This was a major win for those of us who believe in a robust right to petition the government under the First Amendment. You can see Timothy Coates’ excellent analysis of the Court’s opinion on SCOTUSblog for more information on the case.
California law has long been clear that any statements made before an official government proceeding are immune from liability — meaning that you cannot be sued for statements you make to a government body, including a court, a regulatory agency, or the police. (See Civil Code section 47(b), Hagberg v. California Federal Bank, 32 Cal.4th 350.) The relationship between this absolute immunity, called the litigation privilege, and the anti-SLAPP law is a strong and complementary one: the anti-SLAPP law in California allows lawsuits that seek to punish those who speak out to their government to be dismissed at an early stage, before such abusive suits can put a defendant through the time and expense of fighting off such a meritless suit. The anti-SLAPP law provides a procedural tool for protecting this right to petition, while the litigation privilege provides the substantive law barring liability for exercising this right.
Until now, the law was less clear on the federal level, where the circuit courts were split on whether immunity from suit under 42 U.S. Code section 1983 for witnesses testifying before a grand jury was absolute (as in California), or whether it was only conditional, meaning you could still be sued for testifying falsely if the statements were made with malice (i.e., with knowledge or their falsity and an intent to harm). The Court ruled that such immunity should be absolute, reasoning that, in order for courts and the justice system to do their jobs effectively, witnesses must be able to testify freely without fear of civil liability — the same reasoning followed by the California Supreme Court in Hagberg and other cases.