How can I oppose a frivolous lawsuit? (anti-SLAPP laws)

Although many SLAPP lawsuits would likely fail on their legal merits if fully litigated, the plaintiffs who bring them consider these causes of action successful if they effectively silence critics. To prevent this chilling effect on speech about matters of public concern, twenty-seven states, along with the District of Columbia and a U.S. territory, have enacted anti-SLAPP laws. Moreover, courts in Colorado, which does not have an anti-SLAPP law, have addressed the problem in several decisions and extended protections similar to those afforded under some anti-SLAPP statutes. (A federal anti-SLAPP bill that would create uniform, nationwide protection and allow defendants to choose whether they want to argue their case in federal or state court is pending.)

If you are sued for activities related to the exercise of your free-speech rights and you live and work in one of these (soon-to-be) 30 jurisdictions, then the anti-SLAPP statute may likely provide a quick and painless dismissal of the claim before it accumulates a mountain of attorney’s fees. If you are sued in a state without the statutory protection, however, you may be able to convince a court that the laws of your state should apply given the nationwide accessibility of your publication. That is, the nature and proliferation of Internet-based reporting mean you may be sued in a state thousands of miles away from the one in which you live and work merely because your electronic communication is accessible there. If the statements concerned important public issues in your community or state and did not specifically target or intend to attract an audience in the foreign state, then a court may find that forcing you to defend a lawsuit there would violate your constitutional right of due process. In the alternative, a court could rule that the laws of your state apply to the cause of action, even if it was brought and must remain in another state -- one without an anti-SLAPP law.

Although the procedures required and protections provided under anti-SLAPP statutes vary among states, they generally allow the defendant to file a motion to dismiss the case early in the court proceedings because it involves speech on a matter of public interest. Under most of the laws, the plaintiff must then demonstrate a probability of succeeding in the suit. After considering this evidence, or lack thereof, the trial judge is statutorily authorized in most states to decide if the claim has any merit or is merely an attempt to intimidate or silence a critic.

While this motion is pending, the discovery stage of the case -- a lengthy, expensive process during which evidence is obtained -- is stayed. Moreover, successful defendants are entitled to recover costs and attorney’s fees, while losing ones are afforded the right of immediate appeal under most anti-SLAPP laws.

Some states’ statutes offer additional protection. For example, the anti-SLAPP law in California -- commonly recognized as the nation’s strongest and thus the basis for drafts of many other bills, including the federal one -- covers online statements about issues of public concern posted on publicly accessible web sites available over the Internet.   

Because anti-SLAPP laws differ in efficacy from state to state, you should do a little research into the extent to which, if any, you would be statutorily protected if ever “SLAPP’d” with a frivolous lawsuit arising from the exercise of your First Amendment right to free speech. The jurisdictions that have anti-SLAPP laws on the books, or will in the near future, are Arizona, Arkansas, California, Delaware, the District of Columbia, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont and Washington. (Remember that Colorado courts provide protection against SLAPP suits, even though there is no anti-SLAPP law there.)