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Introduction to Anti-SLAPP laws

By Austin Vining and Sarah Matthews

Anti-SLAPP laws provide defendants a way to quickly dismiss meritless lawsuits—known as “SLAPPs” or “Strategic Lawsuits Against Public Participation”—filed against them for exercising their First Amendment rights. These laws aim to discourage the filing of SLAPP suits and prevent them from imposing significant litigation costs and chilling protected speech.

In recent years, several states have adopted or amended their anti-SLAPP laws. As of January 2021, 30 states and the District of Columbia have anti-SLAPP laws, including Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Virginia.  Two other states–Washington and Minnesota–have passed anti-SLAPP laws, but courts have struck them down, as discussed below.

Anti-SLAPP protections vary significantly from state to state. For example, in some states, like Arizona, they only protect defendants from cases brought in retaliation for petitioning the government. In others, such as California, the laws broadly protect speech made in connection with a public issue. For the most part, anti-SLAPP laws are broad enough to cover SLAPP suits aimed at silencing or retaliating against journalists or news outlets for critical reporting.  These laws typically provide critical protections to the news media—allowing defendants to secure a quick dismissal before the costly discovery process begins, permitting defendants who win their anti-SLAPP motions to recover attorney’s fees and costs, automatically staying discovery once the defendant has filed an anti-SLAPP motion, and allowing defendants to immediately appeal a trial court’s denial of an anti-SLAPP motion.

Recent changes in state anti-SLAPP laws

Recent legislation has trended toward more robust protections for defendants in SLAPP suits. 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

Courts in Washington and Minnesota have struck down their states’ anti-SLAPP laws, finding them unconstitutional under their respective state constitutions. In 2015, Washington’s Supreme Court found its anti-SLAPP law unconstitutional because it granted judges the authority to rule on factual questions in non-frivolous claims, violating the right to a trial by jury under the state’s constitution. Davis v. Cox, 351 P.3d 862, 864 (Wash. 2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston Cty., 423 P.3d 223 (Wash. 2018).

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.