Florida

Florida is the only jurisdiction with two separate anti-SLAPP statutes, and the scope of protection under each is relatively narrow. Fla. Stat. 768.295 (2011) prohibits any governmental entity from suing “a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and [the Florida Constitution].” Fla. Stat. 720.304(4) (2011) applies only to homeowners in a homeowners’ association and prohibits suits by individuals and business and governmental entities based on homeowners’ “appearance and presentation before a governmental entity on matters related to the homeowners’ association.”

Notably, Florida has not adopted any statute that specifically governs civil SLAPP suits — or non-homeowner-related suits brought by a private plaintiff against a private defendant based on the defendant’s exercise of his constitutional rights of assembly or petition. However, it does have a statute that allows a defendant who can show that a losing plaintiff brought a claim without any factual or legal support for it to recover attorney fees from the other side. Fla. Stat. 57.105 (2011). The state’s intermediate appellate court upheld an award of attorney fees under this statute to news media defendants for the plaintiff’s filing of a frivolous invasion of privacy and conspiracy to defame lawsuit. Thomas v. Patton, 939 So. 2d 139 (Fla. Dist. Ct. App. 2006). Moreover, the federal appellate court in Florida has applied a federal rule of procedure to sanction a plaintiff and his attorney after the latter brought uninvestigated, frivolous claims based on protected speech. Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252 (11th Cir. 1996); Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089 (11th Cir. 1994).

Under Florida’s anti-SLAPP laws, a defendant can file a motion to dispose of the claim, which the court will hear “at the earliest possible time.” Fla. Stat. 768.295(5), 720.304(4)(c). Florida’s anti-SLAPP laws are two of only a handful to not address whether a SLAPP defendant’s motion to dispose of the claim will halt discovery proceedings. Besides saying a defendant must show that the suit was brought in violation of the relevant anti-SLAPP law, neither specifies what standard a court uses to decide whether a claim was wrongly brought. In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to dispose of the claim and any sworn statements containing facts on which the assertions in those documents are based.

A SLAPP defendant who prevails on the motion is entitled to recover attorney fees and costs. Moreover, a court may — but is not required to — award the defendant any damages he sustained as a result of the suit. In addition, a defendant who prevails under Florida’s homeowner anti-SLAPP law may be awarded treble damages, or three times his actual damages.