Illinois

The Illinois anti-SLAPP law immunizes from civil liability “[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation in government . . . regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” 735 Ill. Comp. Stat. 110/15 (2011). The statute does not define these acts, although a flurry of anti-SLAPP cases was decided in 2010 and provided significant guidance about the law’s scope of protection, which, in light of this jurisprudence, is relatively broad.

In one case, the intermediate court affirmed the grant of a condominium owner’s motion to dismiss pursuant to the anti-SLAPP law claims brought by her condo association over public statements the owner made to a Jewish newspaper about the association’s rule prohibiting the display of a mezuzah outside her unit. In rejecting the condo association’s assertion that the affairs of a private condo association and its board members do not constitute an ongoing attempt to petition a governmental entity for redress, the court said, “the Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.” See Shoreline Towers Condo. Ass’n v. Gassman, 936 N.E.2d 1198, 1207 (Ill. App. Ct. 2010).

In another case involving condominiums, the plaintiff attended a meeting at a local official’s office regarding condo development in the area and participated in a “mingling session” where he expressed his concerns to a local newspaper reporter. The condo developer sued the plaintiff for defamation after his comments were published, and the trial court denied the plaintiff’s motion to dismiss pursuant to the anti-SLAPP law because the statements were not made in the context of a governmental proceeding. The plaintiff appealed to the Illinois Supreme Court, which reversed and found that the plaintiff was entitled to immunity under the law because his statements to the reporter addressed a public matter in furtherance of his right to petition the government. “These statements were in response to [the local official’s] public notice and addressed the subject matter of his testimony and the public meeting. At the very least, these statements affected the 262 unit owners at the [developed condo]. They also potentially affected citizens of the [area] and the City at large. Therefore, [plaintiff’s] statements were ‘in furtherance of’ his rights to speech, association, petition or otherwise participate in government because the Act expressly encompasses exercises of political expression directed at the electorate as well as government officials.” See Wright Dev. Grp., LLC v. Walsh, 939 N.E.2d 389, 398 (Ill. 2010).

Another anti-SLAPP case is currently pending before the Illinois Supreme Court. In Sandholm v. Kuecker, opponents of a high school’s head basketball coach campaigned to have the coach removed, and the school board eventually removed him as coach. The former coach sued the opponents alleging defamation, false light invasion of privacy and tortious interference, but the appellate court affirmed the trial court’s dismissal of all claims against the defendants as immune under the anti-SLAPP statute. See 942 N.E.2d 544, 569–70 (Ill. App. Ct. 2010). The opponents’ statements, made during a local radio program and posted on a local sports website, were genuinely aimed at procuring favorable government action, namely the school board’s removal of the coach, the court said. See id.

The Illinois anti-SLAPP statute gives defendants the ability to move to dismiss or strike claims that infringe the exercise of these constitutional rights. The court will hear and decide the motion within 90 days. Stat. 110/20. If it fails to do so, the defendant is entitled to seek expedited review in the appellate court. Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may order discovery to be conducted, assuming the requesting party can show good cause for it, on the question of whether the acts at issue are immune from liability. The court will grant the motion unless the plaintiff can show by clear and convincing evidence that the defendant’s acts are not in furtherance of the rights of petition, speech, association or participation in government and thus not immune from liability. The statute does not specify what evidence the court will consider in making this determination.

If the court denies the motion to dismiss or strike, the defendant is entitled to appeal that decision immediately. See Ill. Sup. Ct. R. 306(a)(9). (In February 2011, the Illinois Supreme Court amended its rule governing appeals to explicitly provide for leave to appeal the denial of a motion to dismiss under the state anti-SLAPP statute.) However, if he prevails, the court will impose costs and attorney fees on the other party. Stat. 110/25.