Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.
Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.
Matt Strugar’s biography and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Matthew Strugar 0:03
Would you say that the Montgomery Bus Boycott was about getting Miss parks or $15 dollar fine bath? Or was it about an a larger issue?
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal.
Jeff Lewis 0:28
And I'm Jeff Lewis. The California appellate law podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists, but both our practices are split about even between trial and appellate courts. In each episode, we bring our audience practice tips and legal news they can use in their legal practice.
Tim Kowal 0:43
And welcome to episode 41 of the podcast. Before we go a quick thank you to our podcast sponsor casetaxt casetax is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/ca lp.
Jeff Lewis 1:09
And today we welcome to the podcast attorney Matthew strew gar Tim, have you ever received a postcard from an animal thanking you for legal work you've done?
Tim Kowal 1:18
I will not have to roll my eyes back into my head trying to remember if I have no The answer is no.
Jeff Lewis 1:24
Our guest today received a postcard from an animal came to my attention. I read some articles in November of 2021, about him receiving postcards from Wales and he had been involved in litigation against SeaWorld regarding animal rights and years after the lawsuit ended. He received a series of vintage SeaWorld postcards hand written by whales and other sea creatures that can improve his legal work. In addition to animal rights litigation, our guest has litigated prisoner rights cases, Disability Rights Cases, police misconduct cases and an area near and dear to my heart, anti slap cases. He does not identify himself as an appellate lawyer. But he's argued before the California Supreme Court and the California Court of Appeal in important free speech cases. Most recently in June 2022. He argued an anti slap case before the California Supreme Court in geyser V. Coons. So Matthew, welcome to the podcast.
Matthew Strugar 2:17
Thanks for having me, you guys only a recent listener, but I've already picked up lots of helpful tips in my short time. So that's fun.
Jeff Lewis 2:25
We're thrilled to have you here. Tell us Is there anything about your practice or yourself that I might have left out? Regarding who you are what you do?
Matthew Strugar 2:33
I have series of a bunch of cases that are getting some attention about sex offender registration for people with pre Lauren's First Texas sodomy convictions that I think is the only other thing I would add to that. So you know, people talk a lot of smack animals in kind of like sexual deviance. That's my those are my practice areas. Got it? Got it.
Tim Kowal 2:51
Are there still people wasting away with Lawrence v. v. Texas, pre Lawrence v. Texas convictions
Matthew Strugar 2:58
who thank you for asking. There are still three states that require sex offender registration for people with pre Lawrence sodomy convictions. Those are Mississippi, South Carolina and Idaho. And there are about 26 states that still will require registration for people with convictions from those states. So it's it's probably not a ton of people enrolled. But it's kind of a widespread problem.
Tim Kowal 3:20
That's very interesting. We just covered what was it the profit, profit 36. And I get the number wrong the case where miners need to get tried in in juvenile courts, and that that got opened up recently to be retroactive to a now 40 something year old convict. And I wonder if it was so sweet, Jeff, and I covered that on the on the show about how that can happen that a 40 year old with a final judgment can can get a finding that the judgment suddenly becomes non final because he had successfully petition for habeas on a sentencing issue. And now it goes back on the prop 56 issue about whether the civil or the criminal court rather than the juvenile court ever had jurisdiction.
Matthew Strugar 4:02
Listen to that episode. And it's, you know, that sort of finality issue is pretty interesting. We have sort of a similar issue through tech versus Humphrey as to whether people can come in, you know, for 3020 30 years after 30 years after their convictions and sort of say, well, now the courts consider it protected and sort of how does tech interface there and we have two cases pending before the ninth circuit that argued back in May that that, you know, should be coming down the next year that will answer that those questions.
Jeff Lewis 4:29
Are you sure you're not an appellate lawyer? I do a lot of appellate work.
Matthew Strugar 4:33
This is gonna be you know, next. i You and I both are up in front of the first district and next week. It'll be my fourth appeal argued in eight weeks. I you know, I didn't think I was much of an appellate lawyer, but I've now argued for the DC eight for the Ninth Circuit's and you know, up and down in California, so I don't identify as one but I seem to be doing a lot of
Tim Kowal 4:51
that these days. It may be time to update the resume.
Matthew Strugar 4:54
Get that Specialist Certification like y'all
Jeff Lewis 4:56
got don't tell anyone but it's the best, best type of legal Practice. Alright, hey, before we jump into some of your legal accomplishments, can you tell us a little bit about your life and employment that led you to become a lawyer? Sure.
Unknown Speaker 5:10
I mean, just growing up, I sort of had a bad personality. So my mother always told me I'd be a good lawyer. I think she meant it kind of derisively. And then I grew up in the sort of punk rock scene in Richmond, Virginia, which was very political in the 1990s. Mostly, I radicalized with a group called food, not bombs, which are usually punks, and sometimes hippies, who will take sort of discarded food at grocery stores, cook it and then serve it to anyone who's hungry in the park on Sundays, usually, at least that's when it was in Richmond. And you know, the when the cops started trying to tell us we couldn't feed people discarded food, basically, the leftovers of capitalism, we couldn't redistribute them, it sort of what radicalized me, then in the late 90s, it became part of the sort of anti globalization movement that a lot of the left was involved in, then got arrested a number of times was always sort of helped out either criminally or civilly by the National Lawyers Guild, which is a bar organization I've been a part of ever since. And, yeah, all that just kind of led me to law school where I just wanted to get into different types of movement lawyering, be it animal rights, which is very close to my heart, or, you know, any other kind of just social justice movement.
Tim Kowal 6:12
So pretty much the standard path to the legal career. I think there's a lot more people, you know, there's
Matthew Strugar 6:19
a lot, a lot of us out there. But yeah, not a standard path. That's true. Yeah.
Jeff Lewis 6:23
Tell us a little bit about the National Lawyers Guild, you know, when when there's TV coverage of protests, and we see people running around with bright green hats on, can you tell us what those people are doing and a little bit more about what the National Lawyers Guild does?
Matthew Strugar 6:38
Sure, National Lawyers Guild was the very first racially integrated Bar Association's founded, I think, in the 1930s by a bunch of old, you know, you know, 100, year ago radicals on the founding principle that human rights are more important than property rights. Basically, the Florida School just kind of sees itself as the left left wing of the legal move of the legal world. And the green hats are our legal observer program, which we have nationwide, which basically sends out people who are trained, usually lawyers or law students, but not always, when people are trained to kind of observe law enforcement reaction to protest the sort of make sure, you know, just to observe, make sure that the police are sort of respecting first amendment rights and has the right to assemble and they'll they'll gather notes, sometimes write reports, and a lot of times use the kind of information that they gather to either set up or, you know, he uses evidence in civil cases,
Jeff Lewis 7:35
in civil cases, or if if any protesters are prosecuted criminally, they can also be used defensively. Right? Correct. Yeah. Yeah. Interesting. All right. Hey, I want to ask you about two or three of your, your big cases that I found really interesting. But before we jump into that, what do you think your clients or your opposing counsel might say, is unique about you, or the way you approach your legal practice?
Matthew Strugar 7:58
Yeah, no, it's just opposing counsel. But I get told by a lot of people, your practice is all just the fun cases. People tell me, you know, when I was talking about starting a solo practice, somebody said, Well, you know, you gotta do employment law or something, because you just want to do this stuff, all the rest of us do for, you know, for fun, you know, you got to have something that sort of pays the bills daily. And you know, I'm six years in a little bit more of the solo practice. And so far, still just doing the cases everyone else thinks are fun. So I'm really lucky because I get to sort of I get enough calls that I can pick and choose my cases, and almost every single case I take is close to me political art, you know, close to my heart politically in some way. So I get to do sort of a radical legal practice or movement support, and and still be choosy about what I take and what I don't take a
Jeff Lewis 8:46
lot of you really only been on your own six years. Yeah,
Matthew Strugar 8:50
I left the PETA foundation in 2016.
Jeff Lewis 8:53
Wow. Okay. All right. You've done well. Hey, let's talk about the geyser case. That was one that I was fortunate to participate in a moot with you about? Tell us what the case is about what the California Supreme Court's gonna decide and why why any lawyer should care about it.
Matthew Strugar 9:10
Sure, the geyser case involved a family Kamal who lived out in Rio Alto and they lost their longtime home to foreclosure and it was bought out by the nation's largest fix and flip operator Wedgwood and Wedgwood the family of wanted to stay in the house so they got together with the Alliance of Californians for community empowerment action also known as ace which is a large housing rights organization in California. And together with ace they had like kind of an occupy a style protest on the front lawn of the house to try to stave off the sheriff's from evicting people that got picked up by law Pinyon. It was written about a number of times, and they went and they had protests in the actual offices of Wedgwood and Wedgwood sort of agreed to negotiate with the family and then didn't really negotiate with them all that much. Eventually evicted them. And the night that they got evicted about 30 people showed up outside the city. He goes home and had a protest from about nine to 10. There were police officers there observing everything. They didn't give any orders to disperse. They didn't give any instructions. They didn't give any warnings that nothing. And then the CEO hit, you know, CEO, Mr. geyser hit the housing arts organizer for Ace and the mother and father, the family with civil harassment restraining orders, saying basically, you know, you can't protest outside my house. So we found that I slapped motions, because we thought that was speech in connection with an issue of public interest in a public forum. So E three, and E for the statute should apply. But the trial court found that there was no issue of public interest saying this was just a purely private dispute between this family and this company. There's no evidence that the larger public cares. And we said, well, you know, there's been this media coverage in LA Pinyon, and Huffington Post and other places, and he said, No, no media interest doesn't convert a private, you know, some something that's private, a private dispute into a public one. So we went up to the Court of Appeals, the Court of Appeals sort of affirm that and a split decision, went to the California Supreme Court Supreme Court vacated, remand it sent it back, they basically issued that same opinion again, sorry, yeah,
Jeff Lewis 11:11
did they the when he went up to the Supreme Court the first time, that was right around the time that the Supreme Court had issued the film on case and the Supreme Court asked the court of appeal to reconsider your case in light of film on right.
Matthew Strugar 11:25
That's right. And then film on film on basically says what context matters about speech. So first, you take what the issue is, and then you have to find out whether it's in connection with that issue. And you do that by looking at purpose, audience and speaker. So we went back and we said, listen, the audience was anyone who listened to the public writ large, the speaker wasn't just the family, it was 30 people. The purpose might have been to get the whole back. But it was also to, you know, call this guy a scoundrel, and it was even more to call him a scoundrel, because the eviction already happened. So getting the home backs was, you know, sort of a Hail Mary at that point. And when we went back down, you know, the dissent, the judge would dissented the first time sort of asked the attorney for Mr. geyser, would you say that the Montgomery Bus Boycott was about getting Miss parks for $15? dollar fine back? Or was it about a larger issue? And that's, I mean, that's really what it comes down to. I mean, they they ruled against me again, at the court of appeals against putting to one and we went up to the Supreme Court on the issue of basically, how do you decide what the issue is? And should you defer to the moving defendants framing of the issue? And I think that's important, because it really can be the whole ballgame. If, if a trial court says no, this is just a, you know, any dispute can basically be characterized as a dispute between individual parties, or, you know, have a broader issue again, like think of something like Rosa Parks, or, you know, the John Scopes Monkey Trial set about what one guy teaches in his classroom, or is it about the origin of human life? So really like what level of generalization you set the issue at will determine whether the statute applies in almost every circumstance, if not every circumstance. So
Tim Kowal 12:57
the you mentioned that, Matt, when you were describing the case, and you mentioned all the groups that were involved on on either side of the issue, I was I was a little bit lost, because I just skimmed the case yesterday, and I thought it was just all about the way the opinion made it read is that it was just a dispute between geyser and the Coons, you know, I didn't know about these other groups from reading opinion. Maybe I have to maybe they're in the footnotes or something like that. And I didn't make it down there. Well, it's interesting. Yeah, it is. It is sounds like a bigger issue.
Matthew Strugar 13:26
And what's interesting is Mr. Cruz is actually the housing organizer, the family that calls the lead defendant is a housing rights organizer. He's not the family. I mean, if it's a purely personal dispute, purely has to do some work there. So you know, what does that mean? Why, why sua housing rights organize over a supposedly purely personal dispute? I mean, this guy, guys are also put out press releases about that ran a hit piece in Breitbart News against ace time, and Hillary Clinton and George Soros. I mean, there's just they were working the press even more than my side ones, but then sort of saying, just stay on. No one cared about this. So it'll be interesting to see what the court does. I felt good about the argument and to do the right thing.
Tim Kowal 14:05
What was the issue? Just quick question. This may be ignorant, but is the was the issue of the venue of the demonstration, an issue the fact that it was outside or a private residence?
Matthew Strugar 14:15
There's two answers to that. The formal answer is no. That's a step two issue. The real answer is yes, that's absolutely what's going on here. Judges don't like people showing up at people's houses. So they'll bend over backwards to find that that there's no anti slap, you know, prohibition on suing people for doing it. There was no you know, under frisbee versus Schultz, the Supreme Court said you can prohibit demonstrations outside of residences, but there was no such ordinance in Manhattan Beach. When they sued my clients. We you know, said your remedy is with your legislature, not with the courts. He then went to the legislature went to the Manhattan Beach City Council who you know, voted him down three to two and didn't pat you know, fail. It's such a prohibition so even to this day. In Manhattan Beach, there's no there's no prohibition on residential picketing. But, you know, judges still don't like it.
Tim Kowal 15:07
Do you think the legislature should step in there? If that is a legislative issue? Do you have any qualms about picketing, demonstrating in private neighborhoods?
Matthew Strugar 15:16
I've done because it was a much used tactic by the animal rights movement in the late 90s. In the early 2000s, I think I've probably done more residential picketing cases than maybe almost anyone you know, but that we always say, in those cases, you know, the the remedies with the legislature, I, you know, I think can come, I think it kind of creates more problems than it solves sometimes, because most of these, most of these ordinances just say, you can't be within 150 feet, 250 feet of the residents. And practically, that just sometimes puts people in front of other neighbors who have no connection to anything, which is, you know, it's you know, it's kind of messy. And in these cases, you know, even frisbee says, You can't prohibit people marching through the neighborhood. It's just focused residential picketing that can be prohibited. So I don't know that it really it's really like a, the solution is any better than then the problem?
Tim Kowal 16:05
Yeah, it does seem like it gets a little bit closer to the civil harassment restraining order. I see. That's how the dispute started is that there was a restraining order issued in the first instance that followed by the anti slap,
Matthew Strugar 16:17
right, yeah. But you know, I would say, of course, if there's no prohibition on targeted residential picketing, then under the civil harassment, statute, 27.6, constitutionally protected activity can't be the basis for it. So I think in any instance, where they were, someone tried to move for a self assessment restraining order, where there wasn't already a residential picketing prohibition, you know, you really risk getting hit with an anti slap motion under 83 or 84.
Tim Kowal 16:42
So because you you litigate in, in what you call the fun cases that they have, have some political connection aligned with, you know, issues that are near and dear to your heart. Is that, is that the secret to getting review in the Supreme Court? Because you've, you've gotten out there a couple of times? And is it because you're just the nature of your practice selecting these fun cases that have just been they're intrinsically interesting, they're politically interesting. Is that why the Supreme Court is, is given you the nod a few times here?
Matthew Strugar 17:11
I think that really helps. I think, also, you know, the the mind run of anti slap motions involve just things that have nothing to do with public parks are very little to do with public participation. I think the courts are pretty frustrated with that. And I think that's why, you know, maybe I lost is that there's a lot of overcorrection I think the other way sometimes, so when you bring what too many people would sort of seemed like the paradigmatic slap case, and courts find that it doesn't apply. But that does sort of, you know, raise some eyebrows in the in the California Supreme Court, at least, I hope. I mean, in both cases, my opinion was unpublished, and people told me, I had no chance of getting a getting a grant on an unpublished opinion, you know, both both times I got it. So I do think that that that kind of helps and, you know, just really searching for developments and splits in authority in different ways courts are doing different things and how that can play out and really just sort of hammering that. I mean, the this issue of should you defer to the, to the defendants framing of the issue when identifying what the issue is, is something that the dissent had noted, in my case that and said, well, film on sort of suggests you should do this, but courts aren't doing it and kind of gave me a little bit of a roadmap to the to the petition for review. So I think that kind of stuff, always, you know, courts are looking to not do error correction, but solve solve problems that are going to apply to everybody. And this is basically fundamental to every edits that motion under e three or E four, which is where most of them are it
Jeff Lewis 18:34
sounds like the secret is make sure there's a dissent that writes you have a roadmap to get into Supreme Court.
Matthew Strugar 18:40
This sense really, really helped. I also think that my dissenting justice went to law school with two of the justices or then two of the Venn justices. Where's that, but all right, that helps us out, buddy. So that helps.
Jeff Lewis 18:54
All right. Hey, I want also want to ask you about this case, arising from the Fourth Circuit, white coat waste project versus the Greater Richmond Transit Company. Tell us a little bit about that case, and how you got involved. And tell us about it.
Matthew Strugar 19:08
Yeah, as a case against the public transit operator in my hometown, Richmond, Virginia. And it's basically I've done a series of these cases, as my, you know, maybe six or this one wasn't, but now six or seven cases about advertising on buses. So maybe not the most important issue in the world. But basically, those are run by government. I mean, we both municipal transit operators aren't governments. So the advertising is a forum, it's usually a non public forum, although, you know, maybe it's limited public forum, something like that. But But forum analysis applies. So then the question becomes, you know, is it applied in a reasonable and viewpoint neutral way and in Richmond, they were allowing in all kinds of ads about vice presidential debates and ads, you know, for dog rescue saying don't stand for animal cruelty. But when my clients wanted to run an ad criticize doing some experiments on beagles at the local veterans hospital. They said no, we deny this as a political ad. Hey,
Jeff Lewis 20:07
can I ask were these like gruesome photos that were we put up or what was the ad
Matthew Strugar 20:12
is a picture of an adorable Beagle behind a series of bars like the Beagle was in jail. There was a license. There was no there was what was completely anodized. So were you
Jeff Lewis 20:22
involved at the trial level? Did you file the papers at the trial level? Yeah, that
Matthew Strugar 20:26
was my case, from the trial level. We, you know, the Greater Richmond transit company said, Well, we can prohibit political speech based on Cydia, Shaker Heights versus Lehmann, this old case from the 70s and other the Supreme Court where municipal transit operator prohibited candidates speech and it was evenly applied at all times. But then the question kind of becomes once political sort of leaves the candidate or you know, ballot measure realm, you know, what, what counts as political and grt C's designee testified? Well, you know, Nike wanted to run an ad with Colin Kaepernick, I'd have to investigate who Colin Kaepernick is this, you said that, you know, the army could run ads, but if an individual a peace activist wanted to run an ad saying there shouldn't be armies, you know, they couldn't do it. So basically, you know, argument was both its viewpoint and it's not capable of reasoned application, because political almost mean anything. And we were lucky enough, we wanted the trial court as applied, but the district court said, well, we can't i can't invalidate this facially because the Supreme Court said these were okay. And Lehman. So then grTc appealed, I cross appealed on the facial invalidation. And with a George W. Bush, Trump and Clinton panel, I prevailed both on affirming the as applied and valid invalidity. And I also got it fit to clarify facially unconstitutional as not capable of Reason. Reason application.
Jeff Lewis 21:48
All right. And has it gone up to the Supreme Court did the other side seek review,
Matthew Strugar 21:55
they didn't seek review, they just slipped to the fees last week, which is really nice. And it's good, because there was a similar case out of Pennsylvania, where ACLU did that case, and my defendant grTc filed an amicus in support of cert, the Supreme Court didn't take cert there. But I thought that was an indication they would in my case, if I won, but I thankfully they didn't.
Jeff Lewis 22:17
All right, so that case is done. That case is done.
Tim Kowal 22:20
So now, as a result, what the transit authorities have no discretion to review, or is there is there going to be a new is that to the legislature or the municipality, whatever it is to to set up a new standard that has more capable of reasoned analysis.
Matthew Strugar 22:38
So there are 13 prohibitions. There's like a prohibition on religious speech and sort of disparaging speech semantics. Some of those also have some issues with them, but they don't apply to my advertisement. So I didn't challenge them. So grTc can still enforce all 12 of those. It's only the political prohibition that they can't and they're free to go and sort of pass a new more tailored, whether that be candidate invalid advertising or something else version of the political ad prohibition, just the the existing version that's sort of unmoored from any definition of political that is facially invalid. Yeah.
Tim Kowal 23:11
So the grounds of it to political is no longer and available grounds for restricting speech. That's right. Yeah. Makes sense.
Jeff Lewis 23:20
That's what I thought. Hey, yeah, hey, Matt, one of the recurring arguments, Tim and I have has to do with the award of attorneys fees and anti slap motions, I do a lot of anti slap motions, mostly representing the defendants. And oftentimes, when you win as a defendant, you get a big feel or the other side appeals, you start enforcement of that award. It sometimes cuts the appeal short and the case concludes once the plaintiff figures out, Oh, I gotta pay this pending appeal. So he and I have gone around and around around about whether or not these awards of fee should be automatically stayed or not. When a plaintiff files a notice of appeal. You have any thought on that. on that issue?
Matthew Strugar 24:01
I think I'd probably benefit a lot from hearing from you, Jeff about like, what the what the benefit is forcing in the first instance.
Jeff Lewis 24:09
Oh, well, let me Yeah. I can't tell you how many times the other side filed the Notice of Appeal thinking that that state enforcement and we serve a debtors exam notice, and the other side says, Wait, what are you doing? It's stayed pending appeal, and we send them the authority, and then they quickly write us a check and the appeal was done. And I recognize my arguments and the arguments adopted by most California courts are purely policy driven, that if the purpose of the anti slap case is to get a defendant out quick and fully compensate him allowing the cost to be stayed unduly drags the process out. So that, you know, that's the justification in my book, but Tim's got some crazy ideas about, you know, the text of the statute. Things like the words the legislature has written I guess Go ahead, Tim.
Tim Kowal 24:59
I think For the for the benefit of the audience, I'll give the prescious of my my article. It's published in the in the spring edition of the California litigation magazine. So it asked a question that the title of the article is our anti slap fee awards stayed on appeal. And and I answer the question, yes, anti slap fees are automatically stayed on appeal. But under the the Dalling versus Zimmerman case, which is the one that's always cited, that answers the question No. And, and I argue in the article about how that that stems from from a prior Supreme Court decision that that predated a 1993. legislative amendment to the statutes and the 4/3. Case. Court down here in Santa Ana in Qualls versus parent notice that in in its 2017 opinion and reason that nearly all post judgment awards of costs, and California courts should be subject to the automatic stay except for the three specific ones enumerated in the statute, which one is for expert costs not under 998 and others for limited civil cases. And the third ones escaping my my recollection, but it the the upshot was that anti slap fee award should be stayed on appeal. And I had a question for you, Jeff, about whether as a practical matter when there is an appeal of a slap order, and you have a slap fee award, do you press on ahead and, and get judgment enforcement of your fee award.
Jeff Lewis 26:29
Step one, we didn't notice of entry of order to start the clock ticking on the on the fee award because it's a separate timeline for appealing fee awards than for the slap itself. And then step two, we notice that the debtors exam, you go right ahead. I mean, I I like it,
Matthew Strugar 26:46
I'll tell you like both 1983 litigation and anti slap litigation, I usually will just stipulate to not force because I really don't want my money if they're gonna go for I don't want to get paid and then have to pay them back. But but sometimes I do worry that some of the smaller defendants on the other side are going to just either get rid of their money, hide their money, declare bankruptcy, that kind of thing. So I have required a you know, a bond that they post the bond with the court or even a cash undertaking of what the what the thing is so that the courts holding it or there's some kind of something securing it while we do the appeal of I really think the person's maybe like doesn't have a lot of money or is particularly squirrely, but But as a practical matter, I haven't ever tried to like actually collect on it myself in during during the appeal, you know, but I like if if just telling me that that leads to people dismissing appeals and I'm gonna have to change up my strategy. Well, yeah, cuz then
Jeff Lewis 27:43
ethical appellate counsel will talk to their client and say, you know, all the time and energy that Jeff spending on debtors exams and chasing you around gets added to the judgment for fees at the end of the case, you know, that conversation usually prompts action, way, way way. You're
Matthew Strugar 27:58
telling me you have ethical opposing counsel.
Jeff Lewis 28:01
That's the difference between your cases and my cases. Yeah.
Matthew Strugar 28:06
Bloodsport, my case, because everybody's an ideologue.
Tim Kowal 28:09
Yeah. Is that a phenomenon of taking the fun cases? The cases are fun, but opposing counsel sometimes are not.
Matthew Strugar 28:15
Absolutely. I mean, everybody was on the side of an ideological fight with my clients and the other side's once an ideological lawyer that can lots
Jeff Lewis 28:22
of lots of passion. Lots of speaking about passionate cases, you sued SeaWorld, and spoiler for our listeners, you lost. But did that lawsuit against SeaWorld have any impact on the cultural conversation about animal rights or how SeaWorld operates?
Matthew Strugar 28:40
You know, that case was this is a case on behalf of five orca whales were kept at SeaWorld, we filed claiming that they were held in violation of the 13th Amendment Surprise, surprise, the courts did not find that 13th amendment applied to orca whales. But that case was 2012. And that was really before she rolled was sort of a common villain in the cultural consciousness. And that case, got a lot of press and that's, you know, sometimes, you know, the president of the Center for Constitutional Rights when I was there. Jules Lobell has a book and some law review articles called success without victory about sometimes you just fight to fight and you fight to change the conversation. I don't know. I think I think we I think we got the issue on the radar a little bit, obviously, while we're doing that some of our experts who we retained told us Oh, there's this documentary coming out that's really going to you know, blow up the conversation about SeaWorld. It's called Blackfish. And, you know, I dealt with so many activists who think that there's a documentary that's really going to change the world. I'm just like, okay, yeah, sure. Well, and then Blackfish came out and really did put SeaWorld like on the map as the kind of national villain and you know, the onion will runs a series of you know, articles about just how much people hate SeaWorld. So, you know, I hope that our case had something to do that I want to take a whole lot of credit for because I really do think it was the documentary and some of the other people's activism, but, you know, any, any, anything I did to sort of move
Jeff Lewis 30:00
that along. That movie was something else that changed my thoughts but I'd say SeaWorld has been a villain for me for a long time for different reasons. I live and work in palace, Verdi's and we used to have a place here called marine land. One night in the middle of night, SeaWorld bought marine land and shipped one of the beloved whales from marine land to SeaWorld and then shut down marine land. Right? So ever since then, SeaWorld has not been popular with folks in palace Verdi's interesting stuff. Alright, let's shift gears here and talk about I saw in my Twitter feed yesterday, news about the Chad loader case is it pronounced loader or louder loader loader? Who is Chad, and tell us a little bit about his case and how you got involved and what's happening there.
Matthew Strugar 30:45
Sure, Chad's a, had a technology company sold it and then became kind of a citizen, journalist activist who went through a whole lot of the January 6 footage and would expose various people associated with the proud boys movement, or the proud boys organization as being involved in the January 6 Capital protest or capital riot or whatever you want to call it. And, and in doing so, he the oil sorry, the DOJ has cited Chad's tweets. And I think one of the indictments about how they sort of came to learn that this person was was there. So that's kind of who Chad is. The defendant in the case where I represented Chad is named Adam Michael Kiefer. He's a local guy who was associated with the proud boys he was at least in DC on January 6, and at least outside the capitol, and sort of Chad identified Adam on Twitter as being there because being a like a local guy involved with the proud boys and then being somebody who was there and Adam Kieffer filed a civil harassment restraining order and got it you know, issued the ex parte temporary restraining order issued against Chad, basically saying, like, This guy needs to keep his name out of my mouth essentially is like, oh, yeah, all the restraining order really said and as a result, you know, and a restraining order issues, you have to give up all your firearms, you go into a database, like it's a it's a real thing, even if it's just a just a tiara. So
Jeff Lewis 32:18
those restraining orders are super easy to get if that ex parte early stage, you could get one on behalf of a whale if you wanted to. I mean, the Superior Court will rubber stamp anything, right?
Matthew Strugar 32:28
I mean, you know, I encourage anyone, there you go, spend a day in a civil harassment restraining court and stay on the mosque and see how quickly those things issue different judges are different about them. I mean, for the most part, they're sort of known as being too easy to get in the courts even know it. And they've started consolidating civil harassment restraining orders in front of one judge, because they thought when they distributed them out broadly, basically, no judge wanted to be the one who denied one. And then you know, somebody went and killed somebody, so they would just grant them. So they, you know, that was sort of their thinking and consolidating them from one department and Stanley Mosque, which was nice, because that departments may be a little bit more skeptical. But But yeah, those things issued pretty easily. So after that issued, I came in with a couple other attorneys. And we filed an anti slap saying, basically, this is voters speech in connection with an issue of public interest, there basically couldn't be more public interest than, you know, who participated in January 6, or January 6, generally. And, and the court had a cornetta, like, three or four hour hearing where our key for testified for a long time and sort of the judge gave him all the rope to hang himself, he started yelling at the judge, he started yelling at his own attorney, you know, it was kind of a mess. And then the judge back this back in January, the judge granted that granted the anti slap denied the civil harassment restraining order. I do a lot of these anti slaps involving civil rights restraining orders. And this judge insisted on sort of keeping those two together, which I think isn't the right way to do it, I think you should determine the anti slap first, you can appeal it up. But that that, you know, that's just
Jeff Lewis 34:03
appealed up and stay the case, stay the restraining order piece. Hey, let me ask you this on a personal level. You know, putting aside the other work you've done, the people involved in January 6 are dangerous people. Did you ever personally feel any hesitation about jumping into this case and that you'd be putting yourself at risk?
Matthew Strugar 34:24
No, I mean, I don't know. I've made a lot of powerful interest angry in my life. I mean, these people are trolls. Mostly, I got a call driving to the courthouse for the first hearing from a guy named Joey camp, who's you know, I think, you know, been in and out of prison. And, you know, he was telling me my wife's name and my address and my social security number. And, you know, I was just kind of like, Good work, dude. You can use the internet like, I don't care. I mean, we have, we're armed like we're protected. I don't think that any of these like losers are really going to come after us but they do like to scare us and you know, or they do like to some I'm scared the attorneys mean I got a death threat my fourth day working at Center for Constitutional Rights as an attorney. And this guy has a thick southern accent and said if we kept representing Guantanamo detainees, you know, we find ourselves hanging from the from the biggest tree behind our office and I just laughed and said, This guy's never been to Manhattan, there are no trees here. Like you're gonna have to have thick skin to do this kind of stuff.
Tim Kowal 35:21
Yeah. Well, you've you've been involved in in protest movements, you know, your whole life, basically. I mean, now you're now you're defending or you're involved in legal aspect of them now, but you have some familiarity with with what protests are like or the or the you know, Jeff mentioned that the the January 6 protesters are dangerous people did you get a sense that that there's something something different above and beyond you know, the the issues that are, I guess, involved with the conspiracy and things talking about? talked about in the January 6 Commission, but do you get the sense that these these protests are riots? What do you want to whatever you wanna call them? Our, our, our souI? Generous there, there are different kinds of class of protests and riots as than what than what you typically see in political protests and uprisings?
Matthew Strugar 36:06
You know, I mean, my reaction January 6, was just like, Oh, it doesn't seem so bad to have seen or not necessarily been involved in, but I did think sort of the public was I, you know, I just tried to imagine like if this were left wing protesters, I mean, I was protesting at Trump's inauguration. And we didn't try to take the capital. But if like some people who was protesting with got in there, I would have thought, oh, you know, this is an overreaction. But I think the people who were involved especially, you know, the proud boys and these militia movements are particularly scary, just in the the fact that they, you know, stockpile weapons and sort of talk about violent revolution in a way that most protest groups don't so, you know, a little bit mixed. I mean, I think more than I think more than most people I'm sort of sympathetic to this is just a protest, these people have the rights to do this, even though I hate them. But on the other hand, I do recognize that at least some of them seem to have really violent fantasies and ideologies.
Tim Kowal 36:59
I think it's a very important and, you know, I think an honest intellectual exercise to always imagine it, imagine the shoe on the other foot. And I think after, after that, that year, you know, I think it's, you know, should be there's some available data for both sides, you know, to imagine, like, oh, how dare these protesters are going way too far. You know, it's a shoe can be imagined on the other foot.
Matthew Strugar 37:22
Yeah. Remember, on January 6, or maybe January 7, I was like, I was like, I saw the video, and I don't think the cops are shot Ashley Babbitt. You know, I think that was a bad shooting. And, you know, everybody who was one of my friends was, you know, thought I was, I was like, I would take the case. But I mean, I think she probably as a case, and I don't think she was I don't think she was a deadly threat to anybody at that moment. But
Jeff Lewis 37:46
Matthew Strugar 37:47
you know, whatever. I wasn't there. I don't know. I'm not looking to defend her either. But, but I'm just I can I lost a lot of support. And that's criticized for that take?
Tim Kowal 37:56
No, I think I think it's, I think that's that's admirable to try to try to try to look at the every issue from from the other perspective. So back to the kefir and the loader case. So the so ki forgot that civil harassment restraining order, which which you mentioned, can be rather easy to get. And then and then loader was able to go in and get and filed an anti slap motion, and it was able to, was able to successfully got that overturned, got the civil harassment restraining over overturned, I had a question that, you know, it may be a little bit of a tangent, but so T forgot, originally got the court to order loader to stop tweeting about him. But then obviously, as we saw this exposed Kiefer to slap liability, because now he's got got a big fee award against him. But I wonder if if Kiefer had instead changed his strategy. And if he had just appealed to Twitter and said, This isn't these are offensive tweets, it's harassing me and Twitter agreed and shut it shut it down, he would have gotten the same result, but with no exposure to slap liability. And I wonder that seems a little weird. You know, it's more dangerous to go and ask a judge for relief than to just go right to the to the publisher or the platform Twitter to get the the offensive the the, you know, the offending message taken down? Is that is that is that a problem? Do you think?
Matthew Strugar 39:23
Yeah, I think I'm probably in the big nine minority, especially on the left and thinking that there there is something to this idea that these social media companies are large, and they have a lot of power to suppress politically unpopular speech, and that there might there might be ways to deal with that. I mean, I nobody really likes Pruneyard, which is the case saying that there's a California free speech, right, California constitutional free speech, right, and certain public, certain private property areas, including malls and large scale entertainment venues. I mean, I think a rule that applied Pruneyard to social to large scale social media companies would be probably a good one on balance, but you know, I don't think Neither side of the ideologies really want anything like that. The right loves private property and the left loves social media moderation. So, you know, I'm I'm sort of the lone opinion that Yeah, I think there's kind of too much power to, to shut down without process to shut down politically unpopular speech on social media. Yeah, I
Tim Kowal 40:21
thought about Pruneyard when I saw that the anti slap ruling hadn't made a mention that Twitter that the message was was made on a public forum, that being Twitter and I thought that's interesting. They referred to Twitter as a public forum, when we're in the in the debate that you were referencing, it's always talked about No, no, it's just a private platform and the private and the proprietor of the private platform can decide what speech goes on there and whatnot. And I wonder if that is, it seems like a little bit of you can always make distinctions but it seems like a little bit of an intellectual problem to treat Twitter as a public platform for the for the purposes of the slap statute. But then, you know, the proprietor of the platform can say, No, not a public platform only. Only the things we want said go on there. Yeah, I
Matthew Strugar 41:05
think maybe the difference there is E three of the anti slap, which is public forum also has other has words after public forum is free as free speech in a public forum or place open to the public. So I think people use public forum is shorthand for E three, when a place open to the public is obviously much broader than maybe a government forum, you know, government property opened up for speech.
Tim Kowal 41:28
Good to know. Okay, that makes sense. Yeah, I
Jeff Lewis 41:31
gotta tell you, I don't do a lot of civil harassment restraining order cases. And frankly, I do very little at the trial level, I do get a lot of requesting appeals. Usually the restrained party, I can't tell you how many times I've seen these harassment restraining orders misused for purposes of restraining speech, as opposed to harassing conduct. And it's a huge problem. I don't know what the solution is, because oftentimes, somebody doesn't hire an anti slap Lawyer fast enough. And by the time they're up at the appeal stage, the facts or the circumstances are just that an appeal is not warranted, and when it's not a good route to take. And I sure wish the legislature would do something to take care of the problem of civil harassment restraining orders being issued, directed solely at speech rather than conduct.
Matthew Strugar 42:20
Yeah, I really recommend a law review article by a guy named Eric Kaplan, because just called civil harassment restraining orders and free speech, or maybe it's the other way around. He's teamed up with Eugene Volokh a couple of times to submit amicus briefs and some civil harassment cases involving speech all over the country. And then the law review article really sort of lays out, you know, the problems with exactly that it's probably a decade or more old, but it's still completely relevant.
Jeff Lewis 42:44
Tim Kowal 42:45
will try to find that and put a link to that Aaron Kaplan article in the show notes.
Jeff Lewis 42:50
Yeah. Now you've had a run of appellate cases, and you can refer to yourself as an appellate lawyer, if you chose to, what are some lessons that you think you might have learned from these cases that might make you a better trial lawyer?
Matthew Strugar 43:03
Hmm. I mean, I, I'm not a guy who like files, like every objection with written discovery or anything like that, but I still think the appellate work really has made me realize you have to preserve everything below and basically, like, fight every issue, just fight. I mean, if you fight every issue, there's going to be something that the law will develop in, or, I mean, oftentimes, the law will develop in Well, you'll have like a chance to really convince a judge, like, Hey, this is like a new interesting thing, you know, pay a little bit more attention to this, then you do your, you know, run of the mill, appellate cases. And, and really, like try to, you know, treat think of judges as people who are interested in nerds who are interested in interesting legal issues, and try to find like that cutting edge stuff to bring to them because I think that they're a lot more interested in that. And you can only do that if you've preserved Hello.
Tim Kowal 43:55
Yeah, yeah. I think that that advice resonates with me as well. And I wonder if many appellate attorneys who who who don't do a lot of work in trial court or haven't in their in their practice, maybe they maybe they miss that because it's easy for us appellate attorneys, Jeff and me to look at the record and say, Oh, well, you should raise this issue. This is really the issue that that's going to be the winner on on appeal if anything, but you know, it's not the issue that that was going to be persuasive at trial and and and like you said, sometimes the case changes sometimes the facts you know, facts kind of fill in and a different theory presents itself as the more suitable to get into victory. So yeah, I agree with that. You got to fight every issue that's sometimes I hate when you do when we do affirmative defenses and you have to throw everything in there that's even conceivable. But then sometimes you get to get to trial and you think, Wait, did I did I include that? You know, that
Matthew Strugar 44:51
is latchis in there.
Tim Kowal 44:55
It's gonna suddenly it fits or mistake of fact or something. Suddenly it fits.
Jeff Lewis 45:00
Do you ever? Do you have a philosophy or creed that you live by in your practice? Like, for example, Are there cases that you just will not take? Are there arguments that you'll never make? Or do you take anybody who walks in the door?
Matthew Strugar 45:12
Well, like I said, I'm lucky in the sense that I only really have the privilege of really only taking cases that are politically close to my heart. Even for the cases that are politically close to my heart, though, there are still some kinds of cases I won't take. I don't believe defamation should be a tort. I know that that's kind of out there. But like I, you know, no matter how much of a slam dunk case, even if somebody is my closest friend, or my closest political ally, I'm not found a plaintiff side, defamation, false light, interesting, anything like that, because I just I think, I think strategically, it's usually a mistake. And I legally, it leaves me with a bad taste. So that's probably about it. I mean, like I, you know, my cases are for if they're not actually for, like political allies, therefore, like political movements, that that will be advanced, even if the person isn't political. So someone who gets beat up by the police might not be, you know, necessarily a political activist, but it, you know, does, you know, advance the issue of police accountability generally. But, you know, know, if somebody contacts me, even if somebody has money, and most of my clients never pay me, but even if somebody has Money comes to me with a case that doesn't have anything to do with, you know, my political ideologies, I'm privileged enough to not just say, No, you're looking for different kinds of attorney,
Tim Kowal 46:25
what if what if a client calls you and is, is the opposite politics, but, but wants to vindicate a shared principle like free speech?
Matthew Strugar 46:35
Yeah, it would depend just how it would I would have to balance that would depend a lot on just how opposed they are to what I want to do. But like, I you know, I'm sort of like the old school ACLU type thinks that, like, it was important that they took Brandenburg and it was you know, like important that they took skirt the you know, the the Nazis marching through Skokie. You know, when I, my first job is Center for Constitutional Rights sort of prided itself on you know, we won't take those cases against people who, who don't believe what we believe, but I kind of think sometimes you really have to, but I would really hope that they would find I think they would probably get better representation from somebody who doesn't, who does agree with them than me. But, um, but yeah, if it would really, you know, I really do think the state is overreaching, and that their rights are being infringed on even if they're not sort of my political ally, I would still see that as advancing, you know, a political goal of mine, to represent somebody in that situation.
Tim Kowal 47:29
Yeah. Yeah, I think that's good. Do you? Do you take criticism for for having that viewpoint, you referenced it as being an old school ACLU type of philosophy? Was that, is that suggest that things have changed?
Matthew Strugar 47:43
Oh, I think things have definitely changed. I think I'm definitely I think I've seen this kind of having a boomer left mentality, much more so than the kind of, you know, current millennial, I'm Gen X. So you know, I could be right in the middle there. But, um, but I do think that, you know, younger, you know, younger generation, or younger leftists, at least, basically have less respect for free speech as just an ideology generally. And, you know, don't don't sort of see that sort of common interest against against government overreach, like, basically don't see how it's going to come back and bite the left. And I always try to use the, you know, the example of Palestinian rights activists, you know, whether you're talking about campus speech, or anything else, you know, they think, oh, that's just, they're just going after Christians and racists and right wing people, and, you know, everything they're doing to all those groups, they're also doing the students, you know, Students for Justice in Palestine chapters and those kinds of things and try to like, see, you know, you know, if you open the door to that to our ideological opponents, they're going to use those same tools against us. And we have to realize that, and I do think that that's something that there is a bit of a generational divide there.
Tim Kowal 48:51
Do you see the legal system, the courts, current current judges, as being being more resilient and kind of intending to hold more of what you referenced the old school, ACLU type liberal left ideals? Or do you do sense a change even in, in the court system? Yeah. Well, you
Matthew Strugar 49:09
know, the US Supreme Court has been what I think, you know, generally pretty good on are generally very good on free speech things. And that sort of trickles trickles down and a lot of ways. But, you know, should that change to you know, Justice Thomas, get what he wants, overturning New York versus Sullivan or whatever else, I do worry, it's just going to be sort of both sides reaching results oriented decisions. I'm also somebody who thinks that many, many cases are just results oriented decisions. But I sort of see that lurking everywhere, probably more than it actually is. But um, but, you know, I hope that I hope that the sort of maybe more old school minds prevail on that because I do think it really benefits everyone we could, you know, have diversity of thought and you know, without criminalizing or canceling or whatever. Yeah, I
Jeff Lewis 50:00
gotta tell you if Clarence Thomas got his way on New York Times v. Sullivan, that would dramatically change my anti slap practice because I sometimes represent people in battles with public figures. And boy, that'd be one big arrow no longer in my quiver that I could use. Yeah. All right. Well, listen, we want to thank you for your time today. Before we go, Are there any other pearls of wisdom you want to share with our audience before before we conclude the interview?
Unknown Speaker 50:27
No, keep listening to this podcast. That's my only problem was
Jeff Lewis 50:30
okay. It's since you don't really truly describe yourself as an appellate lawyer. We are going to skip the patented copyright lightning round where we ask your phone preference. Please skip that. We do want to thank case text for sponsoring the podcast each week we include links to the cases we discuss using case texts and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/calpe. That's case tax.com/ca LP,
Tim Kowal 50:58
and if you have ideas or suggested guests for future episodes, please email Jeff for me at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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