If you are considering filing a defamation lawsuit or other speech-based claim, you are likely aware that your claim may be challenged based upon free-speech principles or that the defendant may claim that their conduct is protected by the First Amendment. However, many people considering defamation lawsuits are unaware of the fact that the majority of states have enacted specific laws that create significant procedural hurdles for defamation plaintiffs and, in fact, can punish plaintiffs for pursuing “unmeritorious” lawsuits based upon speech.

These laws, called anti-SLAPP or SLAPP-back statutes, were enacted to curb abusive speech-related lawsuits filed for the sole purpose of infringing on and silencing protected speech through litigation. In theory, they are not intended to dissuade persons who have been genuinely harmed by false and defamatory statements – speech that is not protected by the First Amendment – from pursuing valid claims and vindicating their rights.

However, in practice, these laws often make it more difficult – and, perhaps, more importantly, more costly – for those harmed by defamation and similar speech-related torts to get past the pleading stage and, ultimately, have their claims put in front of a jury. The challenges created by anti-SLAPP statutes are not insurmountable. But, if you are pursuing a lawsuit that may face a challenge under an anti-SLAPP law, it is crucial that you are fully informed of how the law may impact your case so you can appropriately set your expectations moving forward.

In this article, Buckingham provides a general discussion of anti-SLAPP statutes, their common features and the challenges they present, and considerations for potential defamation plaintiffs who may be subject to an anti-SLAPP challenge.

What Is an Anti-SLAPP Statute?

Anti-SLAPP statutes are laws intended to curb – and, often, penalize – the filing of Strategic Lawsuits Against Public Participation or a “SLAPP.” A SLAPP is a lawsuit that, on its face, attempts to impose liability on a defendant for harm arising from speech – e.g., defamation, intentional infliction of emotional distress, invasion of privacy, or tortious interference – but is, in fact, filed for the purpose of punishing a defendant for engaging in speech that is, in fact, protected by the First Amendment. A SLAPP is typically filed by a powerful plaintiff against a defendant – either a person or entity – who lacks the financial resources to meaningfully defend themselves in court against a speech-based tort claim and, thus, will stop their speech and/or agree to a settlement in order to avoid incurring the costs of litigation.

A SLAPP is filed by a plaintiff who, in reality, has little interest in actually prevailing on the merits of their case or securing a judgment. It is, in essence, a means by which powerful entities or persons can silence critics with valid complaints. The ACLU of Ohio provides several helpful examples and data regarding what, generally, would be considered a SLAPP, such as a lawsuit suing a citizen for “advocating for the closure of a noxious enterprise,” “reporting violations of law that govern such enterprise,” or “seeking to prevent a new real estate development.” In the latter example – a lawsuit initiated by a real estate developer against, e.g.) the citizen of a city where a new development is planned – the fact pattern would look something like this:

A citizen speaks out at a public meeting or online with concerns regarding how a proposed development will negatively impact the community. The real estate developer – fearing that the criticism will sway public opinion and, for example, dissuade the local government from approving the development – files a defamation lawsuit against the citizen claiming their statements have caused reputational harm or are interfering with a potential contractual relationship. The citizen, worried about the cost of defending the lawsuit – even though they know that their speech is protected under the First Amendment – agrees to stop speaking out about the proposed development to settle the claim.

State legislatures, in recognition of the fact that lawsuits based upon speech can be improperly used as a weapon to silence critics, enacted anti-SLAPP laws. Their aim was to protect citizens exercising their First Amendment rights from being named in lawsuits and facing the costly and time consuming burden of defending their rights through litigation. This goal is accomplished through providing procedural mechanisms that protect defendants in SLAPP action.

Presently, over thirty states in the United States have enacted some form of anti-SLAPP law, including Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Washington.

The scope of these statutes – both in terms of what types of cases will trigger anti-SLAPP protections, as well as the procedural, practical ramifications of filing a lawsuit that may be considered a SLAPP – vary from state to state.

Some statutes narrowly define what cases are entitled to SLAPP protections. For example, in Arizona anti-SLAPP protections are only available to defendants who are facing lawsuits brought in retaliation for petitioning the government. On the other hand, states such as California, Georgia, New York, and Texas provide anti-SLAPP protections in a much broader category of cases. For example, in California, the anti-SLAPP statute can apply to cases where the defendant is being sued for speaking “in connection with a public issue.” This amorphous definition is obviously subject to broad interpretation and, thus, will encompass a wide variety of cases.

Potential Anti-SLAPP Terms Variations

Likewise, different anti-SLAPP statutes vary in terms of the protections provided to defendants – and procedural hurdles placed upon plaintiffs. However, common features of anti-SLAPP laws include:

• Providing a procedure for filing a special motion to dismiss or strike the plaintiff’s Complaint at the beginning of the case prior to discovery;
• Staying discovery while the motion to dismiss or strike is pending;
• Enabling defendants who win an anti-SLAPP motion to recover attorney’s fees for the cost of filing the motion;
• Affording defendants whose anti-SLAPP motions are denied an immediate right of appeal, such that the case does not need to be resolved on its merits before the anti-SLAPP ruling can be reviewed by a higher court.

Anti-SLAPP motion practice shares some similarities to an ordinary motion to dismiss that can be filed at the beginning of any case, but also has some distinct differences. In an ordinary motion to dismiss the grounds for dismissal are usually technical, procedural issues; these types of motions usually do not involve exploring the facts underlying the claims or the production of evidence. Further, even if a court grants a typical motion to dismiss, they will often allow plaintiffs to amend their complaints to fix technical issues instead of dismissing the case in its entirety.

Conversely, when reviewing anti-SLAPP motions courts not only look at the contents of the plaintiff’s complaint, but outside evidence, which can be used to determine whether the defendant is entitled to the protections afforded by the statute and/or whether the plaintiff’s case should not be considered a SLAPP because there is sufficient evidence to establish the claim is not frivolous. Because courts review outside evidence, anti-SLAPP motions share some features in common with a motion for summary judgment – a motion typically only filed after the parties have had the opportunity to engage in the discovery process. However, as one of the primary purposes of anti-SLAPP statutes is to relief defendants of the burden of going through the lengthy and costly discovery process for a claim that has no merit, anti-SLAPP motions are filed prior to engaging in any discovery and, typically, the plaintiff is precluded from serving discovery upon the defendant while an anti-SLAPP motion is pending.

Further, anti-SLAPP motions are motions decided on their merits, meaning the case will be dismissed with prejudice. In jurisdictions where prevailing defendants have the opportunity to recover attorney’s fees from the plaintiff, the entire endeavor can come at a significant cost to a plaintiff trying to pursue a valid claim. Further, even if the plaintiff prevails on an anti-SLAPP statute, in some jurisdictions the defendant is entitled to an immediate right of appeal – meaning that the case can further be delayed as a higher court reviews the trial court’s decision. In light of the fact that many courts across the United States are still experiencing significant delays related to the pandemic, plaintiffs may have to wait years before conducting discovery on their meritorious claims if an anti-SLAPP challenge occurs.

Due to the burdens anti-SLAPP challenges can impose on plaintiffs, including punitive fee-shifting provisions, there is certainly a potential for defendants to abuse the anti-SLAPP protections, particularly in states where the types of cases covered by anti-SLAPP laws are much broader or based upon subjective interpretation of vague statutory language.

Thus, while SLAPPs involve the misuse of litigation to impinge on the rights of citizens to speak freely, anti-SLAPP laws can also be misused. Indeed, the threat of an anti-SLAPP challenge can deter plaintiffs with valid claims from pursuing these claims and vindicating their rights through civil litigation.

Considerations for Plaintiffs Facing Anti-SLAPP Challenges

If you are contemplating filing a speech-related claim, such as defamation or false light invasion of privacy, you should be mindful of the possibility that your claim may fall within the purview of an anti-SLAPP statute, especially if you live or the defendant lives in a jurisdiction with a strong anti-SLAPP law, such as California, Georgia, New York, or Texas. Determining whether you might face an anti-SLAPP challenge is important so that you, as the plaintiff, can appropriately set your expectations for the litigation process in terms of timing, cost, and risk in pursuing such litigation.

Of course, the person who will be in the best position to help determine the possible applicability of an anti-SLAPP law – and help you avoid or overcome a challenge under such a law if it arises during litigation– is an attorney with significant experience handling defamation or other speech related claims and who is familiar with anti-SLAPP laws across different jurisdictions. An experienced attorney will be able to:

• Determine what state law applies to your claims and, therefore, what anti-SLAPP statute, would be at issue;
• Decide on an appropriate jurisdiction to file your claim;
• Anticipate an anti-SLAPP challenge and prepare the complaint in such a way that it minimizes the likelihood of such a challenge arising;
• Ensure you have sufficient evidence to overcome an anti-SLAPP challenge prior to filing the Complaint;
• Defend against an anti-SLAPP challenge in an efficient manner, and
• If appropriate, advocate that you be awarded attorney’s fees if you are forced to defend against a frivolous anti-SLAPP motion.

While sometimes there is no way to avoid an anti-SLAPP challenge, it can still be overcome and the process can go much more smoothly with an experienced attorney familiar with such laws.

What to Be Aware Of

Anti-SLAPP laws are a lesser known form of protection for defendants facing abusive litigation intended to do no more than prevent them from exercising their First Amendment rights. However, anti-SLAPP statutes can also be abused by defendants who seek to delay the litigation process and obtain dismissal of meritorious defamation lawsuits under the guise of First Amendment speech. Because of the significant impact anti-SLAPP laws can have on a defamation plaintiff’s lawsuit, it is important to be aware of these laws and the possibility that they might apply to your claim. The challenges presented by anti-SLAPP laws are not insurmountable but it is important to secure experienced counsel familiar with these challenges.