When James Madison drafted the First Amendment, he wasn’t thinking about a squabble between neighbors about the value of a home in Bel Air. But that venerated clause in our nation’s Constitution was a key issue when that disagreement ended up before the California Court of Appeal.

In 2017, Donna Workman put her family’s Bel Air home on the market for $2,750,000. Her broker, Kimberly Doner, held an open house. Paul Colichman, who lived in a neighboring home on the same street, attended with his partner and reportedly told the broker that they wanted to buy the property but could not afford it.

He also told Doner that they were thinking about adding a second story and rooftop deck to their home. These additions, he informed the broker, would interfere with the sweeping views from the Workman home over their property – views to downtown Los Angeles, Century City and Westwood that Workman believed were “a substantial factor” in the home’s value.

A buyer offered $3,053,000 for the home, and opened escrow on March 20, 2017. On the same day, Colichman emailed Doner, reiterating that he had “decided to proceed” with the construction and telling the broker “it would be critical to disclose this fact to all prospective buyers, as it will impact their view. I have copied my attorney on this email to make it clear that this disclosure was made to you.”

Doner informed the buyer, who tried to find out more from Colichman. The buyer reported that Colichman declined to talk to him or to provide the name of any architect involved in the project, and he backed out of the sale.

A couple, who Workman believed were friends of Colichman, then offered $2,200,000 for the property. They said they were aware of the planned construction, but were still willing to buy the home.

Workman sued Colichman, alleging intentional interference with the sale, fraud and unfair business practices. She sought actual and punitive damages and an injunction barring Colichman from interfering with the sale of the property. While the trial was pending, the home sold for $2,635,000.

Colichman filed what is known as an “Anti-SLAAP” motion, asking the court to throw out Workman’s complaint.

The term SLAAP refers to “Strategic Lawsuits Against Public Policy,” meaning lawsuits aimed at discouraging others from speaking out on public issues or controversies. California’s anti-SLAPP law permits a court to dismiss a lawsuit if it determines that the suit is aimed only at preventing someone from exercising their First Amendment rights about an issue of public interest, and if it believes the plaintiff has no real likelihood of prevailing.

Colichman argued that their statements about the Workman home’s views were made “in connection with a public issue, inasmuch as it concerns real property rights and restrictions in the County of Los Angeles and the marketing of residential real estate to the public through false and misleading marketing materials.”

For this reason, he told the court, it was “indisputable” that this was a “matter of public concern for purposes” of the anti-SLAPP law, because the marketing of real estate affects “a broad segment of society” and involved “matters of consumer protection.”

Colichman also argued that Workman’s lawsuit had no probability of success because she had not suffered any damages because the house had sold “for its fair market value instead of the fraudulently inflated value” based on statements about views from the site.

The trial judge denied the anti-SLAAP motion, stating “I don’t believe that we have a matter of public concern here. It’s a private dispute.”

The appellate court agreed, affirming dismissal of the motion. The lawsuit was about Colichman’s email to Doner, which was a private communication with no public impact, not what Doner may have said to prospective buyers. The fact that a dispute can be somehow linked to “a broad and amorphous public interest” is not sufficient reason to trigger the anti-SLAPP statute, the court said.

The appellate court didn’t stop there, however. It determined that Colichman’s attorney had deliberately dragged out the litigation and harassed Workman and Doner, including sending letters to Doner’s employer, saying the real estate firm faced “potentially significant liability” in the litigation.

The justices imposed sanction of nearly $36,000 against Colichman and his attorney, to be paid to Workman, and an additional $8,500 to be paid to the clerk of the appellate court “for the cost to the taxpayers of processing a frivolous appeal.” They also awarded Workman her costs.

The Founding Fathers ensured that we have the right to speak freely, but we are still responsible for the consequences of what we say – and email.

By Laurie Murphy