Blackman v. Substack

Filed 9/29/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR MAURY BLACKMAN, Plaintiff and Appellant, A173244 & A174800 v. SUBSTACK, INC., et al., (San Francisco City & County Defendants and Super. Ct. No. Respondents. GC24618681) “ ‘[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.’ ” (The Florida Star v. B.J.F. (1989) 491 U.S. 524, 533 (The Florida Star).) This First Amendment principle lies at the center of this lawsuit, which presents a clash between plaintiff’s privacy rights and the freedom of the press. Penal Code sections 851.91 and 851.92 provide for the sealing of arrest records in certain situations when the arrest did not result in a conviction, and the latter statute prohibits dissemination of sealed documents. (Pen. Code, §§ 851.91, subds. (a), (c), (e), 851.92, subds. (b), (c).) Plaintiff Maury Blackman’s 2021 arrest was sealed pursuant to these statutes, but the San Francisco Police Department (SFPD) publicly 1 released the investigative police report for the arrest to a third party without restriction, and an anonymous source subsequently sent that report to defendant Jack Poulson. Poulson wrote about Blackman’s arrest online, and Blackman sued Poulson and the entities that provided online platforms for Poulson’s postings. Defendants filed special motions to strike Blackman’s complaint under the anti-SLAPP 1 statute (Code Civ. Proc. 2, § 425.16). The trial court granted the motions, concluding that Blackman’s suit arose from protected activity under section 425.16, subdivision (e)(3) (section 425.16(e)(3)), and his claims were barred by the First Amendment to the United States Constitution (First Amendment) and the Communications Decency Act (CDA) (47 U.S.C. § 230(c)). For the reasons explained herein, we affirm the court’s order granting the anti- SLAPP motions, and we affirm a related order granting defendants attorney fees under section 425.16, subdivision (c). BACKGROUND As is relevant here, Blackman filed a 15-count complaint against Poulson, Substack, Inc. (Substack), and Tech Inquiry, Inc. (Tech Inquiry). 3 Each defendant moved to strike the complaint in its entirety under section 425.16. 1 “ ‘SLAPP’ is an acronym for ‘strategic lawsuit against public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.) 2 All further statutory references are to the Code of Civil Procedure unless otherwise stated. 3 Blackman asserted the following causes of action: (1) negligence, (2) gross negligence, (3) intentional interference with prospective economic relations, (4) negligent interference 2  The complaint and declarations submitted by the parties establish that Blackman was arrested in December 2021 for felony domestic violence when he was the CEO of Premise Data, a private company. Police officers prepared an investigative report for the arrest (the incident report). Ultimately, no charges were pursued against Blackman, and the San Francisco Superior Court entered an order sealing the arrest and related records under Penal Code sections 851.91 and 851.92 on February 15, 2022. Defendants argued in their motions that their actions were protected by the First Amendment and the anti-SLAPP statute, and the First Amendment and the CDA barred Blackman’s claims. Poulson’s declaration supporting his motion states that he is “an independent journalist focused on the intersection of technology and national security.” He writes primarily through his publicly available newsletter, All-Source Intelligence, but he has done freelance investigative work for The Guardian and The Intercept. Poulson started All-Source Intelligence in April 2023. He writes the newsletter in his personal capacity, and he with prospective economic relations, (5) intentional interference with contractual relations, (6) public disclosure of private facts, (7) false light, (8) intrusion into private affairs, (9) intentional infliction of emotional distress, (10) negligent infliction of emotional distress, (11) defamation, (12) violation of California Business and Professions Code, section 17200 (against Substack only), (13) violation of California Constitution Section 1, (14) violation of Penal Code section 851.92, and (15) violation of Penal Code section 11143. 3 publishes the newsletter through Substack. Poulson stated that he is also the executive director and founder of Tech Inquiry, a public website founded in 2019 that provides government records, articles, and data investigating the intersection between surveillance and weapons companies and the governments that contract with them. Tech Inquiry is an independent legal entity. Poulson declared that, in late August and early September 2023, he wrote two articles on Premise Data. These articles discussed Premise Data’s work for the United States government and Blackman’s government security clearance, as well as a lawsuit the company filed against former employees for allegedly revealing this government work to the Bill and Melinda Gates Foundation. On September 14, 2023, Poulson wrote an article about Blackman’s arrest (the September 14 article). The article contained a link to a redacted copy of the incident report, which Poulson later embedded into the article. In his declaration, Poulson stated that he received the incident report through an unsolicited message on an “end-to-end encrypted messaging” platform from a confidential source in early September 2023. He was unaware that the incident report was sealed when he received it, and there were no markings to indicate it was sealed. Poulson attached to his declaration a copy of the incident report that he received. Poulson also reported that he called the SFPD after he received the report, provided the report number, and “asked for and received confirmation of each pertinent detail in the report.” The SFPD did not inform him the report was sealed. 4  In November 2023, Poulson wrote in an article that someone purporting to represent Blackman had committed perjury by filing a fraudulent Digital Millennium Copyright Act (DMCA) takedown request with respect to the incident report, and further wrote that this same person tried to bribe Poulson to take down the incident report. Poulson also wrote that the public affairs office of U.S. Special Operations Command had not responded to his request for comment on whether Blackman’s arrest or the fraudulent DCMA takedown request violated any Department of Defense policies for holding a security clearance. In December 2023, Poulson wrote an article reporting on Blackman’s resignation as CEO, expressing Poulson’s conclusion that the resignation was a result of reckless behavior, including the arrest and the ongoing lawsuit. Poulson again wrote that someone purporting to represent Blackman had committed perjury by filing a fraudulent DMCA takedown request with respect to the incident report. In January 2024, Poulson reported that Premise Data had settled its lawsuit against former employees. This article also mentioned the fraudulent DMCA takedown request and bribery attempt. In April 2024, Poulson reported on court documents that had been unsealed in Premise Data’s litigation with its former employees. He stated that his article about Blackman’s arrest had become a focus of that lawsuit, with Premise Data attempting to unmask his sources. 5  In his opposition to the motions, Blackman maintained that “the challenged speech” does not implicate an issue of public interest under the anti-SLAPP statute, and the defendants’ acts were not protected under Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326 (Flatley) because the speech violated Penal Code sections 851.91, 851.92, 11143, and 166. Blackman’s declaration opposing the motions described, among other things, his attempts to have Poulson’s internet posts removed based on the sealing order. He declared that he informed Substack that the incident report had been sealed in November 2023 and thereafter, and, through counsel, he contacted Poulson and Tech Inquiry and requested they remove the sealed incident report from the internet in September 2024. Blackman also described Premise Data’s lawsuit against former employees and stated that one of the attorneys representing these employees was Newton Oldfather. Blackman stated that the City of San Francisco had provided Blackman with documents related to the release of the incident report that showed that Oldfather made requests to the SFPD for copies of the incident report on May 3, 2022, and May 9, 2022; in response to the inquiry, “Describe your interest in this report,” Oldfather’s first request stated, “Attorney Investigator,” while his second request left that response blank. On May 17, 2022, the SFPD informed Oldfather that his request dated May 9, 2022, had been processed and the documents he requested were available via the San Francisco Public Records Portal. Blackman declared that the incident report that the SFPD provided to Oldfather had a 6 unique watermark identifier, and the incident report that Poulson published on September 14, 2023, contained this same unique watermark identifier. Blackman also described in his declaration his alleged injuries — financial injuries and stigmatization — caused by Poulson’s “dissemination” of the incident report. The trial court granted each defendant’s anti-SLAPP motion. The court concluded that all the claims asserted in Blackman’s complaint related to Poulson’s internet posts and the effect of their publication on Blackman. At the first step of the anti-SLAPP analysis, the court found that section 425.16(e)(3) applied to the complaint. “Poulson was reporting on a blog post about Blackman, the CEO of a company [ ] that Poulson had previously covered as part of his Substack newsletter, a public newsletter with at least 3,000 subscribers, concerning companies making surveillance technologies. [Citation.] This was a writing in a public forum. [Citation.] And it concerned the character and conduct of the CEO of a company with government contracts in the security and intelligence arena. [Citation.] The character and trustworthiness of members of the business community have been held to be of public significance where business leaders hold themselves out as trustworthy and advertise their businesses to members of the public (see Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146); the court cannot see how the character and trustworthiness of the leader of a business with contracts with the U.S. government and a security clearance can be of any less public significance.” The court rejected Blackman’s 7 claims that defendants’ alleged violations of Penal Code sections 851.91, 851.92, 11143, and 166 rendered the anti-SLAPP statute inapplicable under Flatley. At the second step of the anti-SLAPP analysis, the court concluded that the First Amendment’s protection for the truthful publication of information of public significance barred Blackman’s claims, and the court also found that section 230(c)(1) of the CDA barred the claims against Substack and Tech Inquiry. The court thereafter granted defendants’ request for attorney fees. Blackman timely appealed the court’s orders. DISCUSSION As noted at the outset of this opinion, this case involves a clash between privacy rights and the First Amendment. Both the United States Supreme Court and our Supreme Court have issued decisions addressing similar conflicts that guide our analysis in this case. Accordingly, we set forth the relevant precedents from the high courts before proceeding with our anti- SLAPP analysis. 4 I. Truthful Publication of Lawfully Obtained Information of Public Significance “ ‘In Cox Broadcasting Corp. v. Cohn [1975] 420 U.S. 469 [(Cox)], a 17-year-old woman was killed during a rape in Georgia. The crime received wide press coverage but the name of the 4 We take much of this summary from Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679 (Gates), a case we will discuss in detail post. 8 victim was not disclosed because of a Georgia law making it a crime to publish or broadcast such information. A reporter became aware of the name of the victim when shown an indictment . . . available to him in the courtroom. It was undisputed that the indictment was a public record available for inspection. The reporter’s employer broadcast the name of the victim. The victim’s father brought a privacy action. Cox argued its broadcast was privileged under the First and Fourteenth Amendments [to the United States Constitution]. The Georgia trial court rejected the argument, stating the Georgia statute gave a civil remedy to those injured by its violation. [Citation.] [¶] The Supreme Court stated the issue was whether consistent with the First and Fourteenth Amendments “a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime.” ’ ” (Gates, supra, 34 Cal.4th at p. 687.) Cox acknowledged that, in the “sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society.” (Cox, supra, 420 U.S. at p. 491.) The high court thus found it appropriate to focus on the narrow interface between the press and privacy presented therein, “namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records — more specifically, from judicial records which are maintained in connection with a public prosecution and which 9 themselves are open to public inspection.” (Ibid.) The high court held “the State may not do so.” (Ibid.) “ ‘[Cox] explained that the reporting of information concerning the operation of every part of government, including the judiciary, was of great importance and entitled to strong protection. The court noted that the law of privacy recognized that the interest in privacy fades when the information involved was already in the public record. [Citation.] [¶] [Cox] emphasized that by putting information in an official court record, the state must presume that the public interest was being served. It stated that public records by their very nature are of interest to the public and an important benefit is performed when they are published. The court stated such reporting was important to our form of government and then concluded: “In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.” ’ ” (Gates, supra, 34 Cal.4th at p. 688.) “ ‘In Okla. Publishing Co. v. District Court (1975) 430 U.S. 308 (Oklahoma Publishing), delinquency charges arising from a murder were brought against an 11-year-old boy. Members of the media were present in the courtroom during the detention hearing and learned the boy’s name. The name appeared in newspaper stories and in radio and television broadcasts. At a later closed hearing the trial court entered an order enjoining the press from revealing the boy’s name. Oklahoma Publishing’s 10 petition for a writ to quash the order was denied by the Oklahoma Supreme Court on the basis that Oklahoma law required juvenile proceedings be held in private unless ordered open by the trial court. “ ‘The United States Supreme Court reversed. Citing Cox and other cases, it held that the existence of a state statute requiring closed juvenile hearings was irrelevant since members of the press had lawfully been present at a hearing where the boy’s name was revealed. The court noted the name was revealed in connection with “ ‘the prosecution of the crime,’ [citation], much as the name of the rape victim in [Cox] was placed in the public domain.” [Citation.] The Supreme Court found the trial court’s order unconstitutional. [Citation.]’ ” (Gates, supra, 34 Cal.4th at pp. 688–689.) In Landmark Communications Inc. v. Virginia (1978) 435 U.S. 829, 831, a newspaper published an article about a pending inquiry by the state judicial review commission and identified the judge whose conduct was being investigated. These judicial review proceedings were declared confidential under the Virgina Constitution and statutory law, and Virginia made it a misdemeanor to divulge confidential information regarding the judicial review proceedings. (Id. at p. 830, fn. 1.) The court held the statute was unconstitutional: “[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of 11 the press which follow therefrom.” (Id. at p. 838.) “[N]either the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here.” (Id. at p. 841.) “ ‘In Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 (Daily Mail), a 15-year-old student was shot and killed by a 14-year-old classmate in West Virginia. Newspaper reporters learned the classmate’s name from eyewitnesses to the crime. The assailant’s name was published in the newspaper. Indictments were returned, alleging that the publication of the assailant’s name violated a West Virginia statute making it a crime to publish the name of any child connected with a juvenile proceeding without court permission. The West Virginia Supreme Court found the statute unconstitutional as a prior restraint on the freedom of the press. [Citation.] “ ‘The United States Supreme Court stated the issue of whether the West Virginia law was a prior restraint was not determinative. It stated that whether the statute was a prior restraint or a penal sanction for the publication of lawfully obtained truthful information, any justification required a showing that the state’s action furthers a state interest of the “highest order.” The state argued its interest was maintaining the juvenile’s anonymity as a means of promoting rehabilitation. The court concluded this was not an interest of the highest order. [Citation.] 12  “ ‘In The Florida Star [supra,] 491 U.S. 524 [ ], the court again visited the issue of the criminalization of the disclosure of the name of sex crime victims. A Florida statute made it unlawful to publish the name of the victim of a sexual offense. A report of a rape including the name of the victim was inadvertently released to the press by the police department and The Florida Star newspaper printed it. The rape victim sued the newspaper for printing her name in violation of the nondisclosure statute. The trial court found the newspaper negligent per se and a jury awarded the plaintiff $100,000 in damages. [Citation.] “ ‘The [United States] Supreme Court noted the case again raised the issue of the tension between the freedom of the press and the right of individuals to maintain the privacy of even truthful information. The court noted that while it had addressed this tension in Cox, Oklahoma Publishing and Daily Mail, its approach had been to deal with the discrete factual context of each case and therefore it had not exhaustively considered the issue. [Citation.] “ ‘The Florida Star argued that the trilogy of prior cases produced the rule that the press may never be punished civilly or criminally for publishing the truth. The plaintiff countered that in each of the trilogy cases the information published was already in the public record and the privacy interest in those earlier cases was far less profound than in hers.’ ” (Gates, supra, 34 Cal.4th at pp. 689–690.) The United States Supreme Court found that Cox was not controlling because it dealt with the publication of the name of 13 the crime victim from the public record of a judicial proceeding; however, the court also rejected the rule that truthful publications may never be punished, preferring to avoid categorical directives given the significance of the issues involved. (The Florida Star, supra, 491 U.S. at pp. 532–533.) Instead, the court applied the rule articulated in Daily Mail: “ ‘[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.’ ” (The Florida Star, at p. 533, see id. at pp. 532–534.) Three separate considerations justify this rule. (The Florida Star, supra, 491 U.S. at p. 534.) First, when information is “ ‘lawfully obtain[ed],’ ” the government generally has sufficient means to protect confidential information without punishing its publication. (Ibid.) For sensitive information in private hands, the government may under some circumstances forbid its nonconsensual acquisition, and for information in government custody, the government may classify information, enact and enforce procedures for redacted release, and extend a damages remedy against the government where the government’s mishandling of sensitive information leads to its dissemination. (Ibid.) “Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.” (Ibid.) 14  Second, the publication of information already available to the public does little to protect the right of privacy. (The Florida Star, supra, 491 U.S. at p. 535.) “[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.” (Ibid.) Third, “ ‘timidity and self-censorship’ may result from allowing the media to be punished for publishing truthful information.” (The Florida Star, supra, 491 U.S. at p. 535.) “[Cox] noted this concern with overdeterrence in the context of information made public through official court records, but the fear of excessive media self-suppression is applicable as well to other information released, without qualification, by the government. A contrary rule, depriving protection to those who rely on the government’s implied representations of the lawfulness of dissemination, would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication. This situation could inhere even where the newspaper’s sole object was to reproduce, with no substantial change, the government’s rendition of the event in question.” (The Florida Star, at pp. 535–536.) The Florida Star court held that the First Amendment protected the defendant’s publication of the rape victim’s name. (The Florida Star, supra, 491 U.S. at p. 541.) The article was truthful and involved “a matter of paramount public import: the commission, and investigation, of a violent crime which had been 15 reported to authorities.” (The Florida Star, supra, 491 U.S. at pp. 536–537.) Although police reports with the identity of sexual offense victims were not matters of public record open to public inspection in Florida and mass publication of the victim’s name was outlawed, the defendant obtained the victim’s name lawfully. (Id. at p. 536.) The privacy of victims, their physical safety, and the need to encourage victims to report offenses were significant state interests, but the Florida statute was “too precipitous a means of advancing these interests.” (Id. at pp. 537–538.) The court reached this conclusion for the independent reasons that the imposition of damages against the press “can hardly be said to be a narrowly tailored means of safeguarding anonymity” where the government gave out the information, the statute called for strict liability, and the statute was underinclusive in that it prohibited only mass disclosure. (Id. at pp. 538–541.) “ ‘In Bartnicki v. Vopper (2001) 532 U.S. 514, the court dealt with the protection, if any, given by the First Amendment to the disclosure of the contents of an illegally intercepted communication. In that case the media was provided and published the contents of illegally intercepted cellular telephone conversations between a teacher’s union president and the union’s labor negotiator concerning collective bargaining matters. The officials sued various members of the media who published the intercepted communications, noting that such interceptions were illegal under state and federal law and that it was illegal for anyone to disclose the content of such communication [if that person] knew or ha[d] reason to know it was illegally intercepted. 16  “ ‘In addressing the issue the court began by assuming that the media defendants were aware the recordings were of illegally intercepted communications and that disclosing their content was illegal. The court also noted that the media defendants lawfully obtained tapes of the conversation even though they knew the information was itself illegally intercepted. The court further found that the content of the tapes was of public concern. [Citation.] “ ‘The court noted the rule that absent a need of the highest order a state may not punish the publication by a newspaper of truthful information lawfully obtained. It was argued that the state had two such interests, removing the incentive to intercept conversations and the interest in minimizing harm to persons whose conversations were intercepted. The court stated these interests met the constitutional test with regard to the person who illegally intercepted the conversation. It quickly rejected, however, the argument that an interest in removing the incentive to intercept applied to one who later lawfully obtained and disclosed . . . the information. [Citation.] “ ‘The court stated that the issue of whether the states had a sufficiently high interest in protecting the privacy of those whose conversation was intercepted was a more difficult question. The court noted that allowing the disclosure of such intercepted conversations might have a chilling effect on private speech. The court concluded, however, under the facts before it, criminalizing disclosure of the conversations implicated the core 17 purpose of the First Amendment because it punished the publication of truthful information of public concern. [Citation.]’ ” (Gates, supra, 34 Cal.4th at pp. 691–692.) Turning to California Supreme Court authority, we begin with Briscoe v. Reader’s Digest Ass’n (1971) 4 Cal.3d 529 (Briscoe). Briscoe addressed at the pleading stage whether an actionable invasion of privacy may occur through a magazine’s publication of true information about an 11-year-old crime, including the convict’s identity, where the plaintiff allegedly had reformed and not done anything to reattract the public eye. (See id. at pp. 533–534, 537.) The court recognized “the potential conflict between freedom of the press and the right of privacy” (id. at p. 534), and it distinguished between reports of current crimes protected by the First Amendment as newsworthy, and reports of the facts of past crimes and the identification of past offenders where the former are newsworthy, but the latter may not be. (Id. at pp. 536–539.) Considering the state’s interest in the integrity of the rehabilitative process, the court concluded that the general interest in an unfettered press may be outweighed at times. (Id. at pp. 537–541.) The court held the truthful publication of a past convict’s identity is protected only if it is newsworthy. 5 (Briscoe, at p. 541.) Newsworthiness in 5 One passage in Briscoe stated that “a truthful publication is constitutionally protected if (1) it is newsworthy and (2) it does not reveal facts so offensive as to shock the community's notions of decency.” (Briscoe, supra, 4 Cal.3d at p. 541.) In Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 221, fn. 6, our Supreme Court later explained that Briscoe had “derived this dual standard from [] dictum” in a United States Supreme Court 18 Briscoe was a jury question with the following factors to be considered: “ ‘[1] the social value of the facts published, [2] the depth of the article’s intrusion into ostensibly private affairs, and [3] the extent to which the party voluntarily acceded to a position of public notoriety.’ ” (Ibid.) In Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp. 209, 228–230, the court addressed the balance between privacy and press freedom, finding newsworthy as a matter of law portions of a documentary depicting an automobile accident rescue. The court focused on “the presence or absence of legitimate public interest, i.e., newsworthiness” as an aspect of the tort of public disclosure of private facts. (Id. at pp. 214–215.) In doing so, it observed that “lack of newsworthiness” was an element of the tort, but newsworthiness was at the same time a constitutional defense to, or privilege against, liability for publication of truthful information. (Id. at p. 216.) The court noted that the requirements of tort law and the First Amendment have “generally been assumed to be congruent,” and further observed that courts have struggled to define the boundaries of what is “newsworthy,” with the high court providing very little guidance in Cox and The Florida Star on the contours of the constitutional privilege. (Id. at pp. 216–219.) case involving a New York statute, and ultimately concluded that “[r]ather than establishing a requirement separate from newsworthiness,” the reference to community outrage “appears to fit within the analysis of newsworthiness as a balancing of intrusion against justification” that the court had adopted and applied in Briscoe. 19  In Gates, facing again the issue of whether media defendants could be held liable for airing an account (a documentary) of the plaintiff’s crime many years after his conviction, the court overruled Briscoe. (Gates, supra, 34 Cal.4th at pp. 683–685.) Gates recognized the binding intervening decisions of the United States Supreme Court (described ante) and held: “[A] media defendant may [not] be held liable in tort for recklessly publishing true but not newsworthy facts concerning a rehabilitated former criminal [citation], insofar as that holding applies to facts obtained from public official court records.” (Gates, at p. 692.) Further, the state’s “interest in protecting for rehabilitative purposes the long-term anonymity of former convicts” did not satisfy the applicable strict scrutiny test. (Id. at p. 693) The plaintiff in Gates sought to distinguish Cox and its progeny on the basis that those cases involved reports of current events. (Gates, supra, 34 Cal.4th at p. 693.) The Gates court noted, however, “[T]he high court has never suggested, in Cox or in any subsequent case, that the fact the public record of a criminal proceeding may have come into existence years previously affects the absolute right of the press to report its contents. Cox’s holding was unqualified: ‘Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.’ [Citation.] Cox’s rationale, moreover, related to the ‘very nature’ [citation] of court records per se, not the age of the particular records at issue in that case. As the high court explained, ‘[p]ublic records by 20 their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.’ ” (Gates, at p. 693.) Gates observed that the high court’s jurisprudence contained several key considerations that “neither logically nor practically lend themselves to temporal limitation.” (Gates, supra, 34 Cal.4th at p. 695.) First, a core concern in Cox was “ ‘the “responsibility of the press to report the operations of government” . . . including judicial proceedings regarding crimes.’ ” (Gates, at p. 695.) Second, Cox was premised on the notion “ ‘that “[b]y placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.” ’ ” (Gates, at p. 695.) Third, “[T]he high court’s decision in The Florida Star ‘rested in large part on the fact that the government had, by making the information available to the press, impliedly determined its dissemination was in the public interest, and could not then [fairly] punish a newspaper for’ relying on that determination.” (Gates, at p. 695.) Gates thus concluded that the historical nature of the documentary before it did not “diminish[ ] any constitutional protection it enjoys.” (Gates, supra, 34 Cal.4th at p. 695.) “And, as the high court of a sister state recently observed in deciding a similar privacy case, ‘[t]here is no indication that the First Amendment provides less protection to historians than to those reporting current events.’ (Uranga v. Federated Publs., Inc. 21 (2003) 138 Idaho 550, 556; see also id. at pp. 556–557 [citing Cox in holding that the First and Fourteenth Amendments to the United States Constitution ‘do not permit’ a newspaper ‘to be held liable in damages for accurately publishing a document contained in a court record open to the public’ for over 40 years]).” (Gates, at pp. 695–696.) II. The Anti-SLAPP Statute and Standard of Review “The anti-SLAPP statute is ‘designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” ’ ” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1008–1009.) Section 425.16 should be “construed broadly” to encourage “continued participation in matters of public significance.” (§ 425.16, subd. (a).) An anti-SLAPP motion involves a familiar two-step process. At the first step, the defendant bears the burden of establishing that the plaintiff’s claims arise from protected activity. (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1009.) If the defendant meets this burden, step two requires the plaintiff to show that he or she has a reasonable probability of prevailing on the claim. (Ibid.) The plaintiff must show the complaint is legally sufficient and supported by a prima facie factual showing. (Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5th 22 410, 424.) The court considers the pleadings and affidavits of fact, and it accepts as true the evidence favorable to the plaintiff, evaluating defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Ibid.) We review an order denying a motion to strike under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at pp. 325– 326.) A judgment or order of the lower court is presumed to be correct on appeal, and appellant bears the burden to affirmatively show error through cogent argument supported by legal analysis and citation to the record. (Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492.) The appellant bears this burden regardless of the applicable standard of review. (See ibid. [these principles apply to appeal from any judgment].) A. Step One – Protected Activity Section 425.16, subdivision (e), clarifies what speech or conduct constitutes an “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ ” It includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a 23 public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(1)–(4).) The trial court concluded that the conduct that gave rise to Blackman’s claims was Poulson’s blog posts (speech), and this speech was protected under section 425.16, subdivision (e)(3). Blackman disputes these findings on appeal by arguing that: (1) his claims arise from the privacy rights created by the order sealing his arrest record under Penal Code sections 851.91 and 851.92, not protected speech; (2) regardless, any speech was not “in connection with an issue of public interest”; and (3) defendants’ acts were illegal as a matter of law. We address Blackman’s first two arguments and then turn to his illegality contention. Section 425.16(e)(3) Applies Blackman correctly quotes, but fails to correctly apply, the governing standard with his contention that his claims did not arise from speech. “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The court considers the elements of the challenged claim and the conduct of the defendant underlying those elements as alleged in the complaint, with a focus on the injury- producing conduct. (Id. at p. 1063.) Blackman argues that his claims “arise from his privacy rights,” which were created by the 24 sealing of his arrest record. His “privacy rights” are clearly not the injury-causing conduc