Arkansas has a strong anti-SLAPP law. It immunizes from civil liability anyone making a “privileged communication” or “performing an act in furtherance of” the rights of free speech or petition in connection with an issue of public interest or concern, unless such statements are made with knowledge of or reckless disregard for their falsity. Ark. Code Ann. § 16-63-504 (2019). Acts in furtherance of the rights of free speech or petition in connection with an issue of public concern include, but are not limited to, statements made before a legislative, executive, or judicial proceeding, or those relating to a matter under consideration by a governmental body. § 16-63-503. Although not specifically listed as an example in the statute, since Arkansas’ anti-SLAPP law protects “free speech” in connection with an issue of public interest or concern, it should also apply to SLAPP suits concerning news coverage.
A “privileged communication” is a statement made during the “proper discharge of an official duty” about an issue of public concern related to an official proceeding, including criticism of any governmental proceeding or official acts of public officers, so long as those opinions are expressed without knowledge of, or reckless disregard for, their falsity. Id.
When a plaintiff files a lawsuit against someone for an act that reasonably could be viewed as a “privileged communication” or one in furtherance of the rights of free speech or petition in connection with an issue of public interest or concern, the anti-SLAPP law requires the plaintiff and the plaintiff’s attorney to file written verifications under oath. § 16-63-505. These must certify that the claim is grounded in fact and “warranted by existing law or a good faith argument” for a modification of existing law. § 16-63-505. If the plaintiff fails to make the verification within 10 days of being notified of this requirement, the court must dismiss the case. § 16-63-506(a).
If the plaintiff submits the required verifications, the defendant can file a motion to dismiss or strike the case for improper verification. § 16-63-506. The judge will hear the motion within 30 days, barring court emergencies. § 16-63-507(a)(2). Discovery activities are placed on hold once the motion is filed, although the judge may permit “specified discovery” if the requesting party can show good cause for it. § 16-63-507(b).
In ruling on the motion to dismiss or strike, an Arkansas court will likely first determine whether the verification falsely alleges that the claim is not a SLAPP suit. If the court determines that the statements in the verification indicate that the plaintiff or the plaintiff’s attorney either did not believe the legal claim was legitimate or brought it for an improper purpose, the court will grant the motion to dismiss or strike. § 16-63-505. The court will also, at the request of the defendant or on its own, impose sanctions against the plaintiff, the plaintiff’s attorney, or both. The sanctions may include dismissal of the claim and an order to pay “reasonable expenses incurred because of the filing of the claim, including a reasonable attorney’s fee.” § 16-63-506.
In addition, a prevailing SLAPP defendant may be entitled to recover “other compensatory damages” if he or she can show that the claim was brought for the purpose of “harassing, intimidating, punishing, or maliciously inhibiting a person or entity” from engaging in the protected activity. § 16-63-506(b)(2).