What Is An Anti-SLAPP, Anyway? A Lawsplainer Series
Chapter Three: What Makes A Good Or Bad Anti-SLAPP Statute?
Welcome back to my lawsplainer series on Anti-SLAPP statutes. In Chapter One, I explained why the existing civil justice system is inadequate to protect defendants from meritless lawsuits targeting free speech. In Chapter Two I explained how anti-SLAPP statutes address that problem by providing a special procedural vehicle to dismiss bogus and censorious lawsuits. It’s time for Chapter Three: what makes a good or bad anti-SLAPP statute?
Not All Anti-SLAPP Statutes Are Created Equal
Almost any Anti-SLAPP statute is better than nothing — but some are not much better. There are broad and robust statutes that are very effective at protecting speech from bogus lawsuits, and narrow statutes that protect very little speech. The Public Participation Project has an excellent site documenting the statutes across America, from good to none.
Which Speech Is Covered?
The most important part of an Anti-SLAPP statute is its scope. Remember from Chapter Two that an Anti-SLAPP statute does not create new substantive protections for speech — it’s not a supplemental First Amendment. Rather, it creates a special procedural vehicle that lets a defendant seek to dismiss a lawsuit targeting specified types of speech, using arguments based on already-existing law. It’s a way to make First Amendment arguments early and conveniently. But which lawsuits and which speech? Some Anti-SLAPP statutes apply to lots of lawsuits aimed at a variety of speech, and some apply to very little.
Take California's statute, California Code of Civil Procedure section 425.16. It applies to a broad range of speech:
(e) As used in this section, “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” 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 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.
So California’s statute applies not just to petitioning the government, but to all statements in a public forum on a statement of public interest, and any other speech protected by the First Amendment on an issue of public interest. The only category of speech it wouldn’t apply to is speech on a matter of purely private interest — say, for instance, accusing a non-public figure of marital infidelity. That means that if someone sues you for speech in California, you can probably bring an anti-SLAPP motion under California’s law unless the speech in question is about a purely private issue. Write a letter to the legislature about a local property development? Post a comment on Facebook about a local law? Make a speech about a public figure’s behavior? It’s all covered.
Contrast that with, for instance, Maine's anti-SLAPP statute.
As used in this section, "a party's exercise of its right of petition" means any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
So in Maine, the anti-SLAPP statute only applies to speech made about issues pending before government entities, either to the government or to other people trying to get them involved in the government deliberations. Write a letter to the legislature about a pending law? That’s covered. But write a newspaper column about a big company’s behavior, on a matter not currently pending before the government? Write a blog post about a public figure’s behavior? Give a speech decrying, say, racism by a charitable organization? That’s not covered. This is a narrow statute that won’t capture the vast majority of bogus and censorious defamation litigation.
Or consider Florida's Anti-SLAPP statute, which is broader than Maine’s but much narrower than California’s:
a) “Free speech in connection with public issues” means any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.
So Florida’s statute will capture, for instance, a satirical play, but not a blog post not directed at an issue pending before the government.
The bottom line: most Anti-SLAPP statutes would apply to a statement made in a letter to Congress about a pending bill. But a blog post about some controversial issue or dispute that’s not currently pending before the government? That may or may not be covered by the statute depending on the state.
Mandatory Fees And Penalties
Good Anti-SLAPP statutes award mandatory attorney fees to a prevailing defendant, and possibly even penalties on top of the fees. This is crucial because it deters SLAPP suits, gives defendants a chance to mitigate the expense of defending a SLAPP suit, and gives attorneys an incentive to defend SLAPP suits pro bono (since most courts have found that even pro bono attorneys are entitled to recover fees if they win an Anti-SLAPP motion for a defendant).
However, a few states give the judge discretion whether to award fees to a prevailing defendant, or require the defendant to file a cross-complaint or separate action to litigate to recover those fees. Take Delaware:
(a) A defendant in an action involving public petition and participation, as defined in § 8136 of this title, may maintain an action, claim, cross-claim or counter-claim to recover damages, including costs and attorney’s fees, from any person who commenced or continued such action; provided that:
(1) Costs, attorney’s fees and other compensatory damages may be recovered upon a demonstration that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law;
Requiring the time and expense of a separate action to pursue fees blunts the effect of a fee provision. So does any language requiring the defendant to show that the SLAPP suit was brought in bad faith or with intent to censor or harass. Judges are inclined to split babies; the typical outcome of such provisions is that a judge will grant the anti-SLAPP motion but deny fees, thus leaving the wrongly sued defendant liable for their own potentially substantial fees.
As we discussed in Chapter Two, standard Anti-SLAPP statutes require the defendant to show that the lawsuit attacks speech covered by the statute, and then shifts the burden to the plaintiff to show they have admissible evidence sufficient to prevail — that is, sufficient to overcome any First Amendment or other free speech defense. But some statutes graft additional requirements on the motion, forcing the defendant to make some other showing other than a valid First Amendment or other free speech defense. Take, for instance, Indiana:
Sec. 5. It is a defense in a civil action against a person that the act or omission complained of is:
(1) an act or omission of that person in furtherance of the person's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue; and
(2) an act or omission taken in good faith and with a reasonable basis in law and fact.
This grafts an additional requirement that speech, to be covered by the state’s Anti-SLAPP statute, must be “taken in good faith,” which is not a First Amendment requirement. That makes it potentially more difficult to prevail at the anti-SLAPP stage.
Anti-SLAPP statutes are premised on the recognition that the process is punishment — that defending a vexatious defamation claim, even if the defendant prevails at trial, burdens the defendant’s speech through the expense, stress, and disruption of the litigation process. Good Anti-SLAPP statutes incorporate measures designed to minimize the inherently coercive and punitive nature of litigation. For instance, effective anti-SLAPP statutes automatically halt the process of discovery, so that a plaintiff bringing a frivolous suit can’t harass the defendant through expensive and disruptive depositions and demands while they litigate the anti-SLAPP motion. (There’s usually a provision allowing a plaintiff to demonstrate to the judge that they need a specific type of discovery to respond to the anti-SLAPP motion.) Similarly, effective Anti-SLAPP statutes stop a plaintiff from dismissing or amending the complaint once the defendant has filed their motion, to stop plaintiffs from file-and-dismiss or file-and-amend harassment and evasion of the Anti-SLAPP statute’s fee provisions.
One of the most powerful attributes of Anti-SLAPP statues — and one of the most controversial — is the right to immediate appeal. In general, only final orders in a civil case are appealable — the ultimate judgment, not some intermediate step. So, under normal procedure, a judge’s refusal to dismiss a case can’t be appealed immediately, requiring the defendant to wait until the end of the case. There are ways to bring an issue to the Court of Appeals on an emergency basis — often called a “writ” — but these are highly disfavored and far less likely to prevail than a standard appeal of a final order.
Strong Anti-SLAPP statutes protect defendants by allowing an immediate appeal of a trial court’s denial of an Anti-SLAPP motion. That immediate appeal instantly halts all further proceedings on the case in the trial court. It’s impossible to overstate how utterly this transforms the strategy of lawsuits aimed at speech. These days appeals usually take years. That means that if I sue over speech in a state with a strong Anti-SLAPP statute, even if I win the Anti-SLAPP motion, and then win again on appeal, I’m looking at years of delay before my case can move forward to discovery and substantive litigation. It’s a huge deterrent to censorious litigation and an incalculable benefit for defendants. Appeals, in general, are much cheaper and less disruptive than trial court litigation; it’s much easier and cheaper to file an Anti-SLAPP motion and then appeal it if you lose than it is to defend a defamation case in the trial court. This dramatically reduces the coercive effect of filing a lawsuit targeting speech.
Critics object that this is too great a barrier to valid complaints aimed at speech. They complain that though in theory a frivolous Anti-SLAPP motion might be sanctioned in the trial court and on appeal, in reality such sanctions are rarely imposed, leaving every incentive to delay cases by years whenever there is a remotely plausible free speech issue. There’s no doubt that immediate appeal provisions are a completely transformative speed bump in cases aimed at speech, but Anti-SLAPP advocates generally believe that the benefits for protecting speech from frivolous litigation outweigh the burdens on valid lawsuits.
The Bottom Line
Is your state’s Anti-SLAPP statute good or bad or mediocre? Do you even have an Anti-SLAPP statute? You can check the Public Participation Project's excellent site to find out.
Next time: what about federal court and federal cases? How can you raise an Anti-SLAPP argument there? Should there be a federal Anti-SLAPP law?