A statutory solution

To prevent this chilling effect on speech about matters of public concern, 27 states, along with the District of Columbia and U.S. territory of Guam, have enacted specific anti-SLAPP laws. Moreover, courts in Colorado, Connecticut and West Virginia, which do not have anti-SLAPP statutes, have addressed the problem in several decisions and extended protections somewhat similar to those under some anti-SLAPP statutes. (Bills that would provide remedies for SLAPP defendants were introduced into the Michigan and North Carolina Legislatures and the U.S. Congress this past legislative session, but none have become law.)

Under most anti-SLAPP statutes, the person sued makes a motion to dismiss or strike the case, which the judge is generally required to hear early in the court proceedings, because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that he will prevail in the suit, meaning he must make more than allegations of harm and actually show that he has evidence that can result in a verdict in his favor. After considering this evidence, or lack thereof, the judge determines if the claim has any merit or is merely an attempt to intimidate or silence a critic. If the judge deems the claim meritless, he will grant the defendant’s motion to dispose of it. In that case, many of the statutes allow the defendant to collect reasonable attorney fees and court costs from the plaintiff.

Not every unwelcome lawsuit is a SLAPP suit. Rather, the term applies to lawsuits brought to discourage various activities associated with the exercise of the constitutional rights to free speech and to petition the government. Although the specific activities a lawsuit must target to qualify as a SLAPP suit differ among jurisdictions, SLAPP suits generally target speech about issues of public interest or concern, or public participation in government proceedings. Thus, typical SLAPP suits include lawsuits based on: media coverage of newsworthy events; statements or other efforts to report on or oppose a building permit or zoning change; and statements made before a legislative, executive or judicial proceeding or in connection with an issue under review by a governmental body.

 

Widely disparate levels of protection

The scope of protected activity varies widely. Commonly recognized as the nation’s strongest anti-SLAPP law, the California statute protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” Under California law, a website publicly available over the Internet is considered a public forum, so a lawsuit based on any online statement made in connection with an issue of public interest would be subject to early dismissal under the anti-SLAPP statute, assuming other legal standards were met.

This broad protection stands in sharp contrast to the protection under Pennsylvania’s anti-SLAPP law, which applies only to individuals petitioning the government about environmental issues.

Likewise, the scope of protection under both of Florida’s anti-SLAPP statutes is relatively narrow and unlikely to protect journalists and others engaged in publishing activities. One prohibits the government 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,” while the other applies only to homeowners in a homeowners’ association. Thus, Florida has not adopted a statute that addresses civil SLAPP suits like the one the Palm Beach County homeowner brought against the three neighbors who opposed his plan to build a dock.

However, Florida 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. LaHart relied on this law when she asked a judge to order the neighbor to pay the more than $100,000 she said her clients would have incurred in attorney fees during the six years of unnecessary litigation had LaHart not represented them for free.

The plaintiff, just weeks before the case was scheduled for trial, voluntarily dismissed the claims after LaHart notified him of her intent to seek attorney fees under this statute.

“The Court finds that the action filed by the Plaintiff was a frivolous lawsuit in retaliation against these Defendants for engaging in their constitutionally protected activities,” Florida Judge David F. Crow said in his June order granting LaHart’s motion for attorney fees, noting the plaintiff’s lack of reasonable inquiry and good faith basis for his allegations.

The plaintiff, who claimed an attorney-client privilege or lack of knowledge in response to deposition questions about the charges, had no support for his allegations that a petition against the proposed dock and an alleged misstatement about its dimensions defamed him, Crow held.

“The Defendants’ freedom to petition their government and speak their minds regarding matters of public concern are among the most basic fundamental constitutional rights guaranteed to the citizens of this state,” he said. “Clearly the purpose of [the statute] is to deter frivolous pleadings by placing the financial responsibility upon those who engage in such activities. . . . This is the situation when such sanctions are proper.”

Accordingly, the judge was scheduled to hold a hearing in August to determine the amount of fees the plaintiff must pay LaHart, she said. While this statute may help alleviate the financial burden of civil SLAPP-like suits, it lacks the other important protections of specific anti-SLAPP laws, namely the ability to dispose of a meritless claim early in the court proceedings, she added.