In the age of instant social media, there is a tendency to immediately threaten or actually initiate litigation to stop activities deemed as limiting political activity. Many states have what are called anti-SLAPP (“anti-strategic lawsuits against public participation”) laws to provide buffers against such litigation. A significantly updated version of Arizona’s anti-SLAPP law took effect on September 24, 2022. The revised anti-SLAPP statute provides expedited mechanisms for a party to challenge claims that are perceived to deter, retaliate against, or prevent the lawful exercise of that party’s constitutional rights. A.R.S. § 12-751.
Common scenarios where an anti-SLAPP statute might apply include when individuals or groups find themselves facing a lawsuit following their participation in the democratic process, by some entity or person claiming harm from their democratic participation. For example, a local citizens’ group protesting against neighborhood zoning plans, makes certain statements concerning proponents of the plans, and then subsequently defends against a defamation lawsuit. See also Snell & Wilmer’s Legal Alert (Mar. 24, 2022) for an in-depth explanation of anti-SLAPP statutes, particularly Arizona’s prior version.
Arizona’s original anti-SLAPP statute, enacted in 2006, allowed an expedited procedure when a party faced legal action stemming from the party’s “exercise of the right of petition.” The statute defined the phrase “exercise of the right of petition” as including only where a statement fell within the constitutional protection of free speech, and was either made (1) as part of an initiative, referendum, or recall effort; or (2) in a governmental proceeding, in connection with an issue under consideration or review by any governmental proceeding, and for the purpose of influencing a governmental action. A.R.S. § 12-751(1) (2006).
Arizona’s updated statute expands this specific limitation defining the “right of petition” and now includes the rights of speech, freedom of the press, free association, and peaceable assembly as recognized by either the U.S. or Arizona Constitutions. To successfully apply this statute, the moving party must prove that the legal action was motivated by a desire to deter, retaliate against, or prevent the lawful exercise of a constitutional right.
The updated statute also provides additional guidance for the mechanics of bringing an anti-SLAPP motion. Specifically, the law allows a person (other than a state actor or intervenor) to submit a motion to dismiss or a motion to quash the action when the person believes they are subject to a retaliatory action. The statute also outlines how to prove the instigator’s desire for retaliation, deterrence, or prevention of exercising the person’s constitutional rights.
Among other changes to the statute—including additional provisions regarding state actors—is the notable change from requiring a court to award reasonable attorney fees if the moving party is successful, to merely allowing a court to award reasonable attorney fees.
Finally, the legislature also modified A.R.S. § 12-2101 (“Judgments and orders that may be appealed”) to explicitly allow an appeal in many circumstances from a trial court’s ruling on an anti-SLAPP motion. Hence, one does not need to wait until the end of full litigation, such as on the defamation claim (or other legal claim), to seek an appeal. This allows the parties to potentially avoid significant litigation costs if, in the end, the court of appeals disagrees that an anti-SLAPP motion should have been either granted or denied by a trial court.
Of note, the legislature did not include a retroactivity provision in the new law. Hence, actions brought before the statute became effective are not impacted by the new statute. However, parties, organizations, and individuals susceptible to certain action by engaging in the “public square” should they be aware of the new statute and its impact on political or other socioeconomic activities speech. Anyone with questions about the scope of Arizona’s updated anti-SLAPP statute and how it may apply to a particular situation should consult with legal counsel.
