Arizona amended its anti-SLAPP law in May 2022 to protect all lawful exercises of First Amendment rights, including the rights of free speech and free press. Ariz. Rev. Stat. Ann. § 12-751(A) (2022). The amendments, which took effect on September 24, 2022, marked a substantial expansion of the law’s scope. Previously, Arizona’s anti-SLAPP law protected only against SLAPP suits brought in retaliation for the exercise of one’s right to petition the government, such as participating in a referendum or submitting statements to a government proceeding. Ariz. Rev. Stat. Ann. §§ 12-751(1)–(2), 12-752(A) (2019).
To invoke the amended statute’s protections, the SLAPP defendant must file a motion to dismiss or quash the suit within 60 days. Ariz. Rev. Stat. Ann. § 12-751(A), (D) (2022). However, the defendant must also demonstrate that the case against them was substantially motivated by a desire to deter, retaliate against, or prevent the lawful exercise of a constitutional right. Id. § 12-751(B). This restrictive requirement is new to the amended statute. A plaintiff is not required to respond to an anti-SLAPP motion, and discovery is not paused, unless and until the court finds that the defendant has made this prima facie showing. Id. § 12-751(B), (E).
If the court finds that the defendant has shown the case against them was improperly motivated, it must grant the defendant’s anti-SLAPP motion unless the plaintiff meets certain criteria. If the plaintiff is not a state actor, they must show their case is justified by existing law or supported by a reasonable argument for extending or modifying existing law. Id. § 12-751(B)(2). If the plaintiff is a state actor, they must show that their claims are justified by clearly established law and that they did not, in fact, act to deter, retaliate against, or prevent the defendant’s exercise of constitutional rights—a higher bar, making it easier to win anti-SLAPP motions against the government. Id. § 12-751(B)(1). In making this determination, the court may hold an evidentiary hearing or consider the plaintiff’s complaint, the anti-SLAPP motion, and sworn statements containing facts on which the assertions in those documents are based. Id. § 12-751(C).
If the SLAPP defendant prevails on a motion to dismiss or quash, the court “may”—but is no longer required to under the amended law—award the defendant their costs and attorney’s fees. Id. § 12-751(F). Conversely, if the court finds that the motion to dismiss or quash was frivolous or brought solely to delay the proceedings, it “shall” award costs and attorney’s fees to the prevailing plaintiff. Id.
If the court finds that the defendant has shown the case was improperly motivated, the court’s decision granting or denying the anti-SLAPP motion can be immediately appealed. Id. § 12-751(H). The appeal will be expedited unless an appeals court rule or decision provides otherwise. Id. §§ 12-2101(A)(5)(e), 22-261(C). These provisions do not apply if the court finds that the defendant failed to show the case was improperly motivated.
The amended statute does not state that it applies retroactively.