SLAPP Suits and Anti-SLAPP Statutes
Controversial and heated business dealings with or involving public entities are all too familiar: A developer or other business seeks to pursue a project or to obtain public funding and, in response, local individuals or organizations emerge to oppose such ambitions. Opponents will communicate with local officials or law enforcement, advocate at hearings for development or public funding approval, or even take to the streets in protest. Political opposition can sometimes be strong enough to provoke a defamation lawsuit. Traditionally, if an entity believes that falsehoods have damaged its reputation, it may have grounds for legal recovery, injunction against continued defamation, or even “take down” actions by third party publishers.
Both sides in cases like these should be aware of Arizona’s anti-strategic lawsuits against public participation (“anti-SLAPP”) statutes, which provide an expedited mechanism to dismiss complaints based on public participation in governmental proceedings. Broadly, anti-SLAPP statutes seek to level the playing field between local advocates and powerful interests who might have the financial resources to stymy public opposition by subjecting opponents to broad and expensive discovery.
Arizona Anti-SLAPP: Nuts and Bolts
The central feature of Arizona’s Anti-SLAPP statute is the mandatory dismissal of any legal action involving certain types of speech unless the non-moving party “shows that the moving party’s exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual compensable injury to the responding party.” Put simply, if you cannot prove the merit of a lawsuit involving another’s right of petition, the anti-SLAPP statute will bring a swift end to your case.
The statute also increases the stakes for claimants. By requiring an expedited hearing, the statute leaves little time for discovery. That may frustrate entities’ efforts to prove the merits of their claim. Serious consequences may follow: the statute requires an award of reasonable attorney fees and encourages successful defendants to seek sanctions.
As a result, potential litigants should take note of what speech the anti-SLAPP statute covers. To begin with, the statute protects only constitutionally protected free speech, meaning certain “well-defined and narrowly limited classes of speech”—including defamation— cannot benefit from the anti-SLAPP statute’s procedural safeguards. If it is constitutionally protected, the anti-SLAPP statute applies in two circumstances.
First, it protects speech “made as part of an initiative, referendum or recall effort.” Thus, the statute broadly protects a wide array of statements made as part of ballot measures or efforts to oust politicians. Second, it protects speech that is: (a) “Made before or submitted to a legislative or executive body or any other governmental proceeding;” (b) “[m]ade in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding;” and (c) “[m]ade for the purpose of influencing a governmental action, decision or result.” A governmental proceeding “means any proceeding, other than a judicial proceeding, by an officer, official or body of this state and any political subdivision of this state, including boards and commissions, or by an officer, official or body of the federal government.”
A New Gloss on the Scope of Anti-SLAPP Coverage
The Arizona Court of Appeals has recently given some valuable insights on the anti-SLAPP statute’s scope. BLK III, LLC v. Skelton concerned a dining and entertainment business (BLK III) leasing property subject to an existing conditional use permit restricting noise levels on the property. BLK III alleged that local neighbors conspired to destroy BLK III’s business by “orchestrating a ‘scheme to report false sound violations to the Scottsdale Police’” and “soliciting help from members of the Scottsdale City Council” in their effort to revoke the permit. In response, the neighbors moved to dismiss pursuant to the anti-SLAPP statute.
Seeking to avoid dismissal, BLK III first argued that the statute did not apply because defamation is not constitutionally protected. While actual defamatory statements are not constitutionally protected, the court faulted BLK III for relying on only “broad summaries” of the allegedly defamatory statements. The court focused on BLK III’s failure to include the specific statements because the court could not determine whether the statements were actionable under defamation law.
Of note, the court gave the second category of speech covered by the anti-SLAPP statute a broad interpretation. The statements at issue in Skelton were reports to the police, statements to individual council members, and a letter and petition submitted to the City. Although BLK III had a pending request (letter and petition) with the City to amend its conditional use permit, no other challenged statements appear to have been submitted to a public entity or to have been made before a formal proceeding or city council meeting. Instead, the court applied this provision to communications not made during any proceeding, including “distributing flyers, gathering petitions, and writing letters.” Thus, Skelton signals that, going forward, such informal lobbying may be covered by the Anti-SLAPP statute as long as it is designed to influence a pending governmental decision.
Final Thoughts
Skelton provides two potential takeaways to individuals and organizations interested in bringing defamation actions. First, if the potential defamation action concerns speech protected by the Anti-SLAPP statute, claimants should consider “clearly and specifically alleg[ing] the content and context of the challenged statements and why and how they were defamatory.”
Second, Skelton’s broad reading of the anti-SLAPP statute could impact entities who believe local opponents have defamed them in communications to individual legislators. Following Skelton, potential litigants might consider conducting additional pre-litigation fact investigation to avoid an unexpected anti-SLAAP motion and/or prepare for the burden that comes with responding to an anti-SLAAP to show actual injury at an early stage of litigation.
On the other hand, if Skelton is widely applied by courts in Arizona, it could give those engaged in lobbying activity breathing room to make highly charged statements in furtherance of their lobbying. In other words, because Skelton sees such activity as the “exercise of the right of petition,” the anti-SLAPP statute assigns the allegedly defamed individual or organization with the difficult task of proving the statements are not only false but lacked “any reasonable factual support.” All told, it appears likely that Skelton will have a deterrence impact on potential future defamation suits. Individuals or organizations with questions about how Skelton might impact defamation claims or lobbying work should consult with legal counsel.
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