Recent changes in state anti-SLAPP laws
Recent legislation has trended toward more robust protections for defendants in SLAPP suits.
On September 7, 2023, New Jersey became the fifth state to enact a version of the Uniform Public Expression Protection Act (“UPEPA”). The law will take effect on October 7, 2023. The Uniform Law Commission drafted UPEPA as a model law designed to prevent abusive litigation, known as strategic lawsuits against public participation or “SLAPPs,” aimed at silencing free speech through meritless defamation, privacy, or other nuisance claims. New Jersey became the fifth state to adopt UPEPA, following Utah, Hawaii, Kentucky, and Washington; several other state legislatures are considering whether to do the same.
On June 17, 2022, Hawaii enacted the Hawaii Public Expression Protection Act (“HPEPA”), a version of UPEPA.
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).
In April 2022, Kentucky became the second state to enact a version of UPEPA. The new anti-SLAPP protection applies to suits based on a person’s exercise of speech, press, assembly, petition, and association rights “on a matter of public concern.” UPEPA, H.B. 222, § 2(1)(c).
In May 2021, Washington became the first state to pass a version of UPEPA. The new anti-SLAPP protection applies to suits based on a person’s exercise of speech, press, assembly, petition, and association rights “on a matter of public concern.” UPEPA, 2021 Wash. Legis. Serv., ch. 259, § 2(2)(c). Washington previously adopted an anti-SLAPP law in 2010, but the state supreme court struck it down in 2015, finding that it violated the state constitutional right to a trial by jury, by authorizing judges to adjudicate factual questions in non-frivolous cases before trial. Davis v. Cox, 351 P.3d 862, 864 (Wash. 2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston Cnty., 423 P.3d 223 (Wash. 2018). The new law avoids this problem by adopting language that tracks the existing summary judgment and dismissal standards. It thus essentially allows defendants to bring motions for summary judgment much earlier in the proceedings rather than after a lengthy and expensive discovery period.
In November 2020, New York significantly expanded its anti-SLAPP law, which had previously only covered cases brought by plaintiffs seeking public permits, zoning changes, or other entitlements from a government body. The 2020 amendments broadened the anti-SLAPP law to cover cases involving “any communication in a place open to the public or a public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest . . . .” N.Y. Civ. Rights Law § 76-a(1)(a)(1)-(2) (McKinney). Accordingly, New York’s revised anti-SLAPP law should apply to news reporting generally. The new law also requires courts to stay discovery pending resolution of an anti-SLAPP motion and entitles a prevailing SLAPP defendant to attorney’s fees and costs.
In June 2019, Colorado became the newest state to adopt anti-SLAPP protections. The law allows a defendant to file a special motion to dismiss claims arising from the exercise of the right of petition or free speech in connection with a public issue. Colo. Rev. Stat. § 13-20-1101(3)(a) (2019). The Centennial State’s new law follows similarly strong laws passed in Connecticut and Kansas in recent years. Conn. Gen. Stat. Ann. § 52-196a (2019) (adopted in 2017); Kan. Stat. Ann. § 60-5320 (2019) (adopted in 2016).
Tennessee significantly improved its anti-SLAPP protections in 2019 to protect people from lawsuits “filed in response to [their] exercise of the right of free speech, right to petition, or right of association.” Tenn. Code Ann. § 20-17-104(a) (2019). The law permits defendants to file a motion to dismiss a SLAPP suit before the costly discovery process begins, immediately appeal the denial of an anti-SLAPP motion, and recover attorney’s fees if a court rules in their favor. Tenn. Code Ann. § 20-17-104 (2019). Previously, Tennessee’s anti-SLAPP law only protected statements made to governmental agencies. § 4-21-1003.
In 2017, Virginia amended its anti-SLAPP law to include actions based on “matters of public concern that would be protected under the First Amendment” and to permit successful defendants to recover attorney’s fees and costs. Va. Code Ann. § 8.01-223.2 (2019). However, unlike most anti-SLAPP laws, the Virginia law still fails to identify any special procedures allowing a defendant to invoke these protections at an early stage of the proceedings.
Not all changes in recent years have strengthened anti-SLAPP protections. In 2019, Texas amended its anti-SLAPP law to limit the types of statements that could receive protection. While the previous version of the Texas law allowed defendants to seek dismissal of lawsuits broadly “related to” a person’s exercise of the right of free speech, petition, or association, the new statute requires the claim to be more narrowly “based on” or “in response to” the exercise of one of those rights. Tex. Civ. Prac. & Rem. § 27.003(a) (2019). Legislators also abandoned anti-SLAPP protections for speech regarding trade secrets or non-compete agreements, potentially allowing employers to intimidate whistleblowers with employment-related suits.
Courts struck down anti-SLAPP laws in Washington and Minnesota, and Washington enacted an updated law
Courts in Washington and Minnesota struck down their states’ anti-SLAPP laws, finding them unconstitutional under their respective state constitutions. As discussed above, however, Washington enacted an updated anti-SLAPP law in 2021 that addressed the concerns of the state supreme court.
In 2016, a Minnesota appellate court similarly found that state’s anti-SLAPP law unconstitutional, finding that the law “deprive[s] the non-moving party of the right to a jury trial by requiring a court to make pretrial factual findings to determine whether the moving party is immune from liability.” Mobile Diagnostic Imaging v. Hooten, 889 N.W.2d 27, 35 (Minn. Ct. App. 2016). The following year, the Minnesota Supreme Court agreed, finding that state’s anti-SLAPP law unconstitutional as applied to claims alleging torts because it requires a district court to make pretrial factual finding in violation of the plaintiff’s right to a trial by jury under the Minnesota constitution. Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623, 637–38 (Minn. 2017). These decisions raise concerns that courts in other states that recognize a plaintiff’s right to a trial by jury may follow suit.
Courts disagree on whether anti-SLAPP protections apply in federal court
If a plaintiff sues a journalist in federal court for a state law tort, such as libel, it is not always clear whether the journalist can invoke the protections of the state’s anti-SLAPP law, assuming one exists. Congress has never passed a federal anti-SLAPP law, and courts across the country disagree about whether state anti-SLAPP provisions apply in federal court. The analysis turns on whether a state’s anti-SLAPP law creates substantive rights and does not conflict with federal rules. Some federal courts of appeals have found both requirements satisfied and allowed defendants to invoke these protections in federal court. See, e.g., Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014) (finding application of Nevada’s anti-SLAPP provisions in federal court “unproblematic”); Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 144 (2d Cir. 2013) (applying California’s anti-SLAPP law in federal court); Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010) (finding that Maine’s anti-SLAPP law applied in federal court); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999) (applying certain provisions of the California anti-SLAPP law in federal court).
But other federal appellate courts, particularly in recent years, have disagreed. See, e.g., Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019), as revised (Aug. 29, 2019) (finding that Texas anti-SLAPP law’s burden-shifting framework could not apply in federal court because it imposed additional requirements beyond those found in the Federal Rules of Civil Procedure); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1351 (11th Cir. 2018) (finding that motion-to-strike procedure in Georgia anti-SLAPP law conflicted with federal rules and could not apply in federal court); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 662 (10th Cir. 2018), cert. denied, 139 S. Ct. 591 (2018) (finding that New Mexico’s anti-SLAPP law does not apply in federal court); Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015) (finding that D.C. anti-SLAPP law does not apply in federal court).
The Supreme Court has not yet weighed in on the matter.
By Austin Vining and Sarah Matthews, with special thanks to Maya Gandhi and Sasha Dudding