1. SLAPP Stick: Summer 2011
Fighting frivolous
lawsuits
against
journalists
By Kristen Rasmussen
This month would have marked the sixth
year of Jeffrey Cameron, Andrea Cameron
and Doug Bouge’s costly and time-consum-
ing legal battle — a legal battle that arose
solely from their concern about a Palm Beach
County, Fla., neighbor’s plan to construct a
mega-dock on publicly owned lands within
an aquatic preserve, and that could have been
resolved in their favor in five months or less
if Florida’s anti-SLAPP statutes provided
broader protection.
“We need a very quick way of getting these
issues in front of a judge because there isn’t
one,” said Marcy LaHart, the Gainesville,
Fla., lawyer who represented the three defen-
dants in the defamation, “wrongful interfer-
ence with the permitting process” and con-
spiracy lawsuit their neighbor, attorney Paul
Thibadeau, brought against them.
continued inside
A
state-by-state
guide to
anti-SLAPP
laws.

2. “A SLAPP suit is a desperate attempt by a
powerful person to silence a dissenting voice.
It is an abuse of the legal system that
should not go unpunished.”
— Baltimore journalist Adam Meister
Thibadeau alleged that the defendants’ relationship, as in a claim of interference brought to discourage various activities
public opposition to his application for a with contract or economic advantage. associated with the exercise of the consti-
permit to build the 270-foot dock caused tutional rights to free speech and to peti-
the local body that manages parts of the A statutory solution tion the government. Although the specific
river on which he planned to build the T prevent this chilling effect on speech
o activities a lawsuit must target to qualify as
structure to administratively challenge about matters of public concern, 27 states, a SLAPP suit differ among jurisdictions,
the dock permit. Thibadeau sought along with the District of Columbia and SLAPP suits generally target speech about
$100,000 in damages from Bouge and U.S. territory of Guam, have enacted spe- issues of public interest or concern, or pub-
the Camerons, the amount of money he cific anti-SLAPP laws. Moreover, courts in lic participation in government proceed-
claimed he expended in defending the Colorado, Connecticut and West Virginia, ings. Thus, typical SLAPP suits include
permit application. which do not have anti-SLAPP statutes, lawsuits based on: media coverage of news-
“[This case is] the poster child for why have addressed the problem in several deci- worthy events; statements or other efforts
we need a strong anti-SLAPP provision,” sions and extended protections somewhat to report on or oppose a building permit
LaHart said. similar to those under some anti-SLAPP or zoning change; and statements made
Short for strategic lawsuits against pub- statutes. (Bills that would provide remedies before a legislative, executive or judicial
lic participation, SLAPPs have become an for SLAPP defendants were introduced into proceeding or in connection with an issue
all-too-common tool for intimidating and the Michigan and North Carolina Legisla- under review by a governmental body.
silencing critics of businesses, often, as in tures and the U.S. Congress this past legis-
the Florida case, involved in environmen- lative session, but none have become law.) Widely disparate levels of
tal and local land development issues. Under most anti-SLAPP statutes, the protection
A Dallas land developer in October 2008 person sued makes a motion to dismiss or The scope of protected activity var-
sued the author and publisher of a book that strike the case, which the judge is generally ies widely. Commonly recognized as the
criticized his involvement in a city’s eminent required to hear early in the court proceed- nation’s strongest anti-SLAPP law, the
domain plan, alleging 79 separate grounds ings, because it involves speech on a mat- California statute protects “any written or
for defamation. Finding that none of the ter of public concern. The plaintiff then oral statement or writing made in a place
statements at issue defamed the plaintiff, a has the burden of showing a probability open to the public or a public forum in
Texas appellate court in July threw out the that he will prevail in the suit, meaning he connection with an issue of public inter-
claims in Main v. Royall, a case that came must make more than allegations of harm est.” Under California law, a website pub-
to exemplify why Texas enacted an anti- and actually show that he has evidence that licly available over the Internet is consid-
SLAPP law this past legislative session. can result in a verdict in his favor. After ered a public forum, so a lawsuit based on
Indeed, most suits of this nature would considering this evidence, or lack thereof, any online statement made in connection
likely fail on their legal merits if fully liti- the judge determines if the claim has any with an issue of public interest would be
gated. Yet, the individuals who bring them merit or is merely an attempt to intimidate subject to early dismissal under the anti-
meet their objective if they effectively or silence a critic. If the judge deems the SLAPP statute, assuming other legal stan-
prevent opponents from speaking out. claim meritless, he will grant the defen- dards were met.
Although most are brought under the guise dant’s motion to dispose of it. In that case, This broad protection stands in sharp
of a defamation claim, SLAPP suits could many of the statutes allow the defendant to contrast to the protection under Pennsyl-
just as easily come as accusations of trade- collect reasonable attorney fees and court vania’s anti-SLAPP law, which applies only
mark infringement, emotional distress or, costs from the plaintiff. to individuals petitioning the government
like the Florida case, conspiracy or interfer- Not every unwelcome lawsuit is a SLAPP about environmental issues.
ence with some type of process or business suit. Rather, the term applies to lawsuits Likewise, the scope of protection under
2 The Reporters Committee for Freedom of the Press

3. both of Florida’s anti-SLAPP statutes is
relatively narrow and unlikely to protect Anti-SLAPP laws and journalists
journalists and others engaged in publish-
ing activities. One prohibits the govern- The Reporters Committee rated on a scale of 1 to 4 stars each jurisdiction with a statute
or cases addressing meritless lawsuits brought to silence speech about a public issue. The
ment from suing “a person or entity with-
evaluation is based on the scope of protection for speech by journalists — defined broadly as
out merit and solely because such person or
those who gather and disseminate information to the public — and was calculated as follows:
entity has exercised the right to peacefully
assemble, the right to instruct representa- • The addition of one star for the existence of an anti-SLAPP statute or case law addressing
the causes of actions;
tives, and the right to petition for redress
of grievances,” while the other applies only • The addition of one star for protection for speech made in any forum in connection with an
to homeowners in a homeowners’ associa- issue of public concern or interest, not just speech made before a governmental body;
tion. Thus, Florida has not adopted a stat- • The addition of one star for protection for speech made in connection with any issue
ute that addresses civil SLAPP suits like the of public concern or interest, not just speech made in connection with an issue under
one the Palm Beach County homeowner consideration by a governmental body or speech designed to procure favorable
brought against the three neighbors who government action (those statutes that broadly define issues of public concern or interest
opposed his plan to build a dock. to include topics ranging from the government to economic well-being are awarded a star
under this criterion);
However, Florida does have a statute
that allows a defendant who can show that • The addition of one star for the mandatory, not just the permissive, award of costs and
a losing plaintiff brought a claim with- attorney fees to a prevailing SLAPP defendant; and
out any factual or legal support for it to • The subtraction of one star for the inclusion of additional burdens, such as a requirement
recover attorney fees from the other side. that the SLAPP suit be brought in “bad faith” or that the statements be made without
LaHart relied on this law when she asked knowledge of or reckless disregard for their falsity.
a judge to order the neighbor to pay the
more than $100,000 she said her clients
would have incurred in attorney fees dur-
ing the six years of unnecessary litigation Mandatory
had LaHart not represented them for free. Statute/ Any public attorney Additional
The plaintiff, just weeks before the case Rating State case law? Any forum? issue? fees/costs? burden?
was scheduled for trial, voluntarily dis- PPP Arizona 3 3 3
missed the claims after LaHart notified PP Arkansas 3 3 3 -3
him of her intent to seek attorney fees PPPP California 3 3 3 3
under this statute. PP Colorado 3 3
“The Court finds that the action filed P Connecticut 3
by the Plaintiff was a frivolous lawsuit in PP Delaware 3 3
retaliation against these Defendants for PPP District of Columbia 3 3 3
engaging in their constitutionally pro-
PP Florida 3 3
tected activities,” Florida Judge David
PPP Georgia 3 3 3
F. Crow said in his June order granting
PP Hawaii 3 3
LaHart’s motion for attorney fees, noting
PPPP Illinois* 3 3 3 3
the plaintiff’s lack of reasonable inquiry
and good faith basis for his allegations. PPP Indiana 3 3 3 3 -3
The plaintiff, who claimed an attorney- PPPP Louisiana 3 3 3 3
client privilege or lack of knowledge in PPP Maine 3 3 3
response to deposition questions about PP Maryland 3 3 3 -3
the charges, had no support for his allega- PPP Massachusetts 3 3 3
tions that a petition against the proposed PPP Minnesota 3 3 3
dock and an alleged misstatement about PP Missouri 3 3
its dimensions defamed him, Crow held. PP Nebraska 3 3
“The Defendants’ freedom to petition PP Nevada 3 3 3 -3
their government and speak their minds PP New Mexico 3 3
regarding matters of public concern New York
PP 3 3
are among the most basic fundamental
P Oklahoma 3
constitutional rights guaranteed to the
PPPP Oregon 3 3 3 3
citizens of this state,” he said. “Clearly the
PP Pennsylvania 3 3 3 -3
purpose of [the statute] is to deter frivo-
PPPP Rhode Island 3 3 3 3
lous pleadings by placing the financial
responsibility upon those who engage in P Tennessee 3 3 -3
such activities. . . . This is the situation PPPP Texas 3 3 3 3
when such sanctions are proper.” PP Utah 3 3
Accordingly, the judge was scheduled PPPP Vermont 3 3 3 3
to hold a hearing in August to determine PPPP Washington 3 3 3 3
the amount of fees the plaintiff must pay P West Virginia 3
LaHart, she said. While this statute may PPP Guam 3 3 3
help alleviate the financial burden of * However, the language is vague and has not been tested in court.
SLAPP Stick: Fighting frivolous lawsuits against journalists 3

4. civil SLAPP-like suits, it lacks the other knew it was real. I had to be careful about parties to legal actions ask each other to
important protections of specific anti- what I wrote. I realized that was part of produce documents, sit for a deposition or
SLAPP laws, namely the ability to dispose what they were trying to do here. I just kept answer formal written questions;
of a meritless claim early in the court pro- thinking, ‘I have to be quiet.’” * the availability of immediate (meaning
ceedings, she added. As such, Meister said he hopes to pres- before the case proceeds to trial) appellate
sure the Maryland General Assembly to review of a trial court’s denial of a motion
A SLAPPed blogger’s push for amend the state anti-SLAPP statute to to dismiss or failure to rule on such in an
reform in Maryland provide more protection to successful expedited manner;
Although an award of court costs and defendants by allowing them to recover * the availability of expedited review
attorney fees is not authorized under Mary- costs and attorney fees. (meaning an accelerated briefing and
land’s anti-SLAPP law — the only one “A SLAPP suit is a desperate attempt by hearing schedule when the case does end
nationwide without such a provision — the a powerful person to silence a dissenting up before an appellate court);
measure helped Baltimore journalist Adam voice,” he said. “It is an abuse of the legal * the recovery of attorney fees and court
Meister avoid an even heftier cost: $21 mil- system that should not go unpunished. costs incurred in defending a SLAPP suit,
lion in damages a city official was seeking There should be meaningful penalties for and whether an award of such is manda-
in her defamation and emotional distress SLAPP suits in Maryland so others do not tory or permissive; and,
lawsuit over one of Meister’s online posts. attempt to chill free speech in this way in * the availability of additional remedies
In a March column for the Baltimore sec- the future.” such as actual or punitive damages, sanc-
tion of news site examiner.com, Meister As the Maryland law indicates, the pro- tions or a private cause of action.
asserted that City Councilwoman Belinda cedures required and protections provided Some references to case law have
Conaway lives outside Baltimore while rep- under anti-SLAPP statutes vary among been included where courts have pro-
resenting its Seventh Electoral District, in states. In addition to those mentioned vided further guidance on the statute.
violation of the Baltimore City Charter. As above, other common provisions include Instances where the law of a jurisdiction
support for these allegations, Meister relied expedited appellate review of orders deny- differs significantly from that of others
on a sworn statement signed by Conaway ing motions to dismiss and limits on dis- are noted.
and homestead property tax exemption covery while the court considers a motion This guide is meant as a general intro-
records that identify her Randallstown, to dismiss under the anti-SLAPP law. duction for journalists to the state of the
Md., home as her principal residence. Common to all anti-SLAPP statutes, law concerning a specific statutory rem-
Alleging that she has had difficulty sleep- however, is their intent to provide a quick edy available to some defendants sued
ing and dealing with others, and became and painless dismissal of meritless claims for activities related to the exercise of
short-tempered and ill because of the stress based on the exercise of the rights of free their rights to free speech or to petition
and distress the column caused, Conaway speech or petition before they amass a the government. It does not replace the
sued Meister and the owners of the site. mountain of attorney fees that forces legal advice from an attorney in one’s own
Meister filed a motion to dismiss the suit those speaking out about matters of pub- state when confronted with a specific legal
under the state anti-SLAPP statute. (The lic concern into silence. Without the leg- problem. Journalists who have additional
Reporters Committee for Freedom of the islative remedy, speech about important questions or who need to find a lawyer
Press filed a friend-of-the-court letter brief issues often remains chilled, anti-SLAPP with experience litigating these types of
in support of Meister’s motion.) advocates in those jurisdictions say. claims can contact the Reporters Com-
At a hearing on the motion, Conaway “I’ve had more than one client back out mittee at (800) 336-4243.
announced she was dropping the suit of a case or not take an appeal because they
because she had, in fact, signed a docu- were served with one of these [frivolous] Alabama
ment stipulating that the Randallstown suits, even though it was baseless,” said There is no statute or cases in Alabama
address was her primary residence for Florida environmental attorney LaHart, addressing SLAPP suits.
tax purposes. Her lawyer told the judge referring to clients’ challenges of various
the councilwoman signed the document land developers’ actions. Alaska
by mistake years ago and did not see it There is no statute or cases in Alaska
again until after filing the lawsuit in May, State-by-state guide addressing SLAPP suits.
although Baltimore County property tax The following is a state-by-state guide
records are available online. to each jurisdiction’s anti-SLAPP law. Arizona
Although Meister was represented for Most of the information was compiled Arizona’s anti-SLAPP law protects
free, he still incurred court costs, though he by Texas media attorney Laura Prather, a against SLAPP suits brought in retali-
said the greater expense was the threat to partner at the law firm of Sedgwick LLP, ation for the exercise of one’s right to
free speech, a “vital aspect of American life.” who was a driving force behind the state’s petition the government. Ariz. Rev. Stat.
“When I first heard about this, it was May enactment of an anti-SLAPP statute this Ann. § 12-751 (2011). Protected petition
10, and they didn’t serve me until June 1. past legislative session. activities are statements made as part of an
From May 10 to June 1, the burden was This guide outlines: initiative, referendum or recall effort, or
‘Are they going to serve me? I’ve got to find * the type of petition or free-speech those submitted to a governmental body
a lawyer, everyone is telling me to find a activities that qualify for protection; concerning an issue under review by that
lawyer,’” Meister said in a telephone inter- * the procedural mechanisms and evi- body to influence governmental action
view shortly after the hearing. “It took away dentiary standards required to obtain or results. Governmental proceedings
from seeing family of mine, I had to talk to early dismissal of a SLAPP suit; before or to which these protected state-
lawyers on the phone instead of going to an * whether and to what extent an anti- ments may be made or submitted include
event, little things like that. . . . Once I was SLAPP motion suspends discovery pro- any non-judicial proceeding by an officer,
served, I really had to be careful, because I ceedings — the procedures by which official or body of the federal government
4 The Reporters Committee for Freedom of the Press

5. Many anti-SLAPP statutes are
limited to protecting citizens
who inject themselves into
controversies before public
bodies, rather than covering
anyone who speaks out in any
forum about a public issue.
Such limited laws are of
little use to journalists.
or the state and any of its political subdivi- Arkansas good-faith argument for a modification
sions, including local boards and commis- The Arkansas anti-SLAPP law immu- of existing law. § 16-63-505. If the plain-
sions. nizes from civil liability anyone making a tiff fails to make the verification within 10
The Arizona anti-SLAPP statute gives privileged communication or performing days of being notified, most likely by the
defendants the ability to file a motion to an act in furtherance of the rights of free defendant, of its requirement, the court
dismiss claims infringing the exercise of speech or petition in connection with an must dismiss the case. § 16-63-506.
this right of petition. § 12-752. The court issue of public interest or concern unless If the plaintiff submits the required verifi-
must give “calendar preference” to the case such statements are made with knowledge cations, the defendant can file a motion to
and conduct an expedited hearing on the of or reckless disregard for their falsity. Ark. dismiss or strike the case for improper verifi-
motion to dismiss. Code Ann. § 16-63-504 (2010). Acts in fur- cation. § 16-63-507. The judge will hear the
Arizona’s anti-SLAPP law is one of only therance of the rights of free speech or peti- motion within 30 days, barring court emer-
a handful to not address whether a SLAPP tion in connection with an issue of public gencies. Discovery activities are placed on
defendant’s motion to dispose of the claim concern include statements made before a hold once the motion is filed, although the
will suspend discovery proceedings. The legislative, executive or judicial proceed- judge may order discovery to be conducted
statute requires an Arizona court to grant ing, or those relating to a matter under if the requesting party can show good cause
the motion to dismiss unless the plaintiff consideration by a governmental body. § for it. In ruling on the motion to dismiss
can show that the defendant’s claimed exer- 16-63-503. A privileged communication is a or strike, an Arkansas court will likely first
cise of the petition right lacked any reason- statement made in the course of official duty determine whether the verification falsely
able factual support or arguable basis in about an issue of public concern related to alleges that the claim is not a SLAPP suit.
law, and his acts caused actual injury to the the official proceeding, or criticism of any If that is the case, the judge will grant the
plaintiff. In making this determination, the governmental proceeding or official acts of motion if he also determines that the state-
court considers the plaintiff’s complaint, public officers so long as those opinions are ments in the verification indicate the plain-
the SLAPP defendant’s motion to dismiss expressed without knowledge of or reckless tiff or attorney either did not believe the
and sworn statements containing facts on disregard for their falsity. legal claim was legitimate or brought it for
which the assertions in those documents When a plaintiff files a lawsuit against an improper purpose. § 16-63-505.
are based. someone for an act that reasonably could If a plaintiff or his attorney submits a false
If a SLAPP defendant prevails on a be viewed as a privileged communication verification, the court will, at the request of
motion to dismiss, the statute mandates or one in furtherance of the rights of free the defendant or on its own, impose sanc-
that the court award him court costs and speech or petition in connection with an tions against the plaintiff, his attorney or
attorney fees. Conversely, if the court issue of public interest or concern, the anti- both. The sanctions may include dismissal
finds that the motion to dismiss was frivo- SLAPP statute requires the plaintiff and his of the claim and an order to pay “reason-
lous or brought solely to delay the pro- attorney to file written verifications under able expenses incurred because of the fil-
ceedings, it “shall” award costs and attor- oath certifying that the claim is grounded ing of the claim, including a reasonable
ney fees to the prevailing plaintiff. in fact and warranted by existing law or a attorney’s fee.” § 16-63-506. Moreover,
SLAPP Stick: Fighting frivolous lawsuits against journalists 5

6. a prevailing SLAPP defendant may be defendant established that the lawsuit arose Connecticut
entitled to recover damages if he can show from one of the statutorily defined pro- Although there is no statute in Connect-
that the claim was brought for the purpose tected speech or petition activities. Braun v. icut addressing SLAPP suits, the state’s
of “harassing, intimidating, punishing, or Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. intermediate appellate court discussed the
maliciously inhibiting a person or entity Ct. App. 1997). If that is the case, the judge nature of the causes of action in a case that
from making a privileged communication will grant the motion unless the plaintiff can arose from the defendant’s act of filing a
or performing an act in furtherance of the show a probability that he will prevail on complaint against the plaintiff-attorney
right of free speech or the right to petition the claim. Cal. Civ. Proc. Code § 425.16. with the state Bar grievance committee.
government . . . in connection with an issue In making this determination, the court Field v. Kearns, 682 A.2d 148 (Conn. App.
of public interest or concern.” will consider the plaintiff’s complaint, the Ct. 1996). In addressing a friend-of-the-
SLAPP defendant’s motion to strike and any court brief’s suggestion that the plaintiff’s
California sworn statements containing facts on which lawsuit was essentially a SLAPP suit,
To challenge a lawsuit as a SLAPP suit the assertions in those documents are based. the court noted that “[t]he distinctive
in California, a defendant must show that If the court grants the motion to strike, elements of a SLAPP suit are (1) a civil
he is being sued for “any act . . . in further- it will impose costs and attorney fees on complaint (2) filed against a nongovern-
ance of the person’s right of petition or free the other side. Moreover, the Califor- ment individual (3) because of their com-
speech under the United States Constitu- nia anti-SLAPP law gives a successful munications to government bodies (4)
tion or the California Constitution in con- defendant who can show that the plain- that involves a substantive issue of some
nection with a public issue.” Cal. Civ. Proc. tiff filed the suit to harass or silence the public concern.” According to the court,
Code § 425.16 (2010). Under the statute, speaker rather than resolve a legitimate “[t]he purpose of a SLAPP suit is to pun-
the rights of free speech or petition in con- legal injury the ability to file a so-called ish and intimidate citizens who petition
nection with a public issue include four “SLAPPback” suit against his opponent. state agencies and have the ultimate effect
categories of activities: statements made § 425.18. Under this remedy, a SLAPP of ‘chilling’ any such action.” Although
before a legislative, executive or judicial defendant who won his motion to strike it stopped short of deciding whether the
proceeding; statements made in connec- may sue the person who filed the SLAPP plaintiff’s actions constituted a SLAPP
tion with an issue under consideration by a suit to recover damages for abuse of the suit, the court agreed that “if bar griev-
governmental body; statements made in a legal process. Conversely, the defendant ants were not absolutely immune from
place open to the public or a public forum must pay the plaintiff’s costs and attorney liability for the act of filing a grievance . . .
in connection with an issue of public inter- fees if the court finds that the motion to it would have a chilling result.”
est; and any other conduct in furtherance strike was frivolous or brought solely to Moreover, two different Connecticut
of the exercise of free-speech or petition delay the proceedings. § 425.16. Either trial court opinions adopted a standard
rights in connection with a public issue party is entitled to immediately appeal the requiring a SLAPP suit, in order to be
or an issue of public interest. California court’s decision on the motion to strike. identified and dismissed as such, to be
courts consider several factors when evalu- “objectively baseless in that no reasonable
ating whether a statement relates to an Colorado litigant could realistically expect success
issue of public interest, including whether Although there is no statute in Colorado on the merits and . . . conceal[ing] an
the subject of the statement at issue was a addressing SLAPP suits, the state’s high- effort to interfere improperly with the
person or entity in the public eye, whether est court has held that, because it threat- defendant’s rights.” Royce v. Willowbrook
the statement involved conduct that could ens the First Amendment rights of speech Cemetery, Inc., No. XO8CV010185694,
affect large numbers of people beyond the and petition, a SLAPP suit should face a 2003 WL 431909 (Conn. Super. Ct.
direct participants and whether the state- “heightened standard” from a court con- Feb. 3, 2003); Arigno v. Murzin, No.
ment contributed to debate on a topic of sidering a defendant’s motion to dispose CV960474102S, 2001 WL 1265404
widespread public interest. Under this of the claim. Protect Our Mountain Env’t (Conn. Super. Ct. Oct. 2, 2001).
standard, statements reporting or com- v. Dist. Court, 677 P.2d 1361 (Colo. 1984).
menting on controversial political, eco- Under this standard, the plaintiff must Delaware
nomic and social issues, from the local to show that the defendant’s petition activi- The Delaware anti-SLAPP statute pro-
the international level, would certainly ties were not immune under the First tects individuals from legal actions involv-
qualify. Conversely, a California court has Amendment because: the defendant’s ing public petition and participation. How-
held that statements about a person who is claimed exercise of the petition right ever, such actions are narrowly defined
not in the public eye do not relate to an lacked any reasonable factual support or as those brought by a public applicant or
issue of public interest. Dyer v. Childress, 55 cognizable basis; the primary purpose permittee in response to the defendant’s
Cal. Rptr. 3d 544 (Cal. Ct. App. 2007). of the petition activity was to harass the statements or other efforts “to report on,
The California anti-SLAPP law allows plaintiff or achieve some other improper rule on, challenge or oppose” that applica-
a defendant to file a motion to strike the objective; and the activity had the capacity tion or permission. Del. Code Ann. tit. 10
complaint, which the court will hear within to adversely affect a legal interest of the § 8136 (2011). A public applicant or per-
30 days unless the docket is overbooked. plaintiff. According to the court, “[t]his mittee is defined as “any person who has
Discovery activities are placed on hold from standard will safeguard the constitutional applied for or obtained a permit, zoning
the time the motion is filed until the court right of citizens to utilize the administra- change, lease, license, certificate or other
has ruled on it, although the judge may order tive and judicial processes for redress of entitlement for use or permission to act
discovery to be conducted if the requesting legal grievances without fear of retalia- from any government body, or any person
party provides notice of its request to the tory litigation and, at the same time, will with an interest, connection or affiliation
other side and can show good cause for it. permit those truly aggrieved by abuse of with such person that is materially related
In ruling on the motion to strike, a Califor- these processes to vindicate their own to such application or permission.”
nia court will first determine whether the legal rights.” The statute allows a defendant faced with
6 The Reporters Committee for Freedom of the Press

7. an action involving public petition and par- activities are placed on hold from the time strate that the claim is likely to succeed on
ticipation to move to dismiss the complaint. the motion is filed until the court has its merits. The act does not specify what
§ 8137. Delaware’s anti-SLAPP law is one ruled on it, although the judge may order evidence the court will consider in making
of only a handful to not address the effect “specialized discovery” to be conducted if this determination.
of a SLAPP defendant’s motion to dispose it “appears likely” that such discovery will If the motion to dismiss is granted, dis-
of the claim on discovery proceedings. The enable the plaintiff to defeat the motion missal will be “with prejudice,” meaning
court will grant the motion unless the plain- to dismiss and is not unduly burdensome. the plaintiff cannot refile the claim. More-
tiff can demonstrate that the claim has a If the defendant can show that the legal over, the court may — but is not required
substantial basis in fact and law or a substan- action is one involving an act in further- to — award attorney fees and costs to the
tial argument for a modification of existing ance of the right of advocacy on an issue prevailing defendant. Conversely, the
law. The plaintiff must also establish by of public interest, the court will grant the court may award costs and attorney fees
clear and convincing evidence that the com- motion unless the plaintiff can demon- to the plaintiff if it finds that the motion
munication was made with knowledge of or
reckless disregard for its falsity if such truth
or falsity is material to the underlying claim.
§ 8136. The statute does not specify what
evidence the court will consider in making
this determination.
Anti-SLAPP legislation in Guam
If the court grants the motion to dismiss,
In addition to 27 states and the Dis- dard is met only if the plaintiff dem-
it may — but is not required to — award
trict of Columbia, the U.S. territory onstrates that the defendant’s claim
attorney fees, costs and actual damages.
of Guam also has an anti-SLAPP of a protected petition activity was
§ 8138. Moreover, it may award punitive
statute. (No other U.S. territories objectively baseless in the sense that
damages to a defendant who can demon-
have such laws.) It immunizes from no reasonable person would conclude
strate that the action was brought “for the
civil liability acts in furtherance of that the act involved petitioning the
purpose of harassing, intimidating, pun-
the constitutional right to petition government and subjectively baseless
ishing or otherwise maliciously inhibiting
the government in an attempt to pro- in the sense that the statements were
the free exercise of speech, petition or
cure favorable action. 7 Guam Code not genuinely aimed at procuring
association rights.”
Ann. § 17104 (2010). Under the stat- favorable governmental action, but
ute, acts in furtherance of the petition were actually an attempt to use the
District of Columbia
right include seeking relief, influenc- governmental process for one’s own
The District of Columbia anti-SLAPP
ing action, informing, communicat- direct effects. Guam Greyhound, Inc. v.
Act of 2010, which went into effect March
ing and otherwise participating in the Brizill, 2008 Guam 13.
31, 2011, applies to suits based on acts “in
processes of government. In making this determination, the
furtherance of the right of advocacy on
The Guam anti-SLAPP statute court will consider the plaintiff’s com-
issues of public interest.” D.C. Law 18-0351
gives defendants the ability to file a plaint, the SLAPP defendant’s motion
(2011). Such an act is defined as a statement
motion to dismiss or strike claims to dismiss or strike and any sworn
made in connection with an issue under
that infringe the exercise of the peti- statements containing facts on which
consideration by a governmental body or
tion right. § 17105. the assertions in those documents are
one made in a place open to the public or a
The court must use a “time period based. 7 Guam Code Ann. § 17106.
public forum in connection with an issue of
appropriate to preferred or expedited Guam’s anti-SLAPP statute includes a
public interest. The act also applies to suits
motions,” and the defendant is entitled provision allowing the island attorney
arising from expressive conduct involving
to seek expedited review in the appel- general or any governmental body to
petitioning the government or communi-
late court if the trial court fails to rule which the SLAPP defendant’s acts
cating views to members of the public in
on the motion in an expedited fashion, were directed to intervene, defend or
connection with an issue of public interest.
although the statute does not define otherwise support the defendant.
The act defines an issue of public interest
“expedited.” § 17106. If the court denies the motion to dis-
as “an issue related to health or safety; envi-
Guam’s anti-SLAPP statute is one miss or strike, the defendant is entitled to
ronmental, economic, or community well
of only a handful to place an absolute an expedited review of the order by the
being; the District government; a public
hold on discovery activities from the appellate court. However, if the SLAPP
figure; or a good, product or service in the
time the motion is filed until not only defendant prevails, the court will award
market place.” However, certain commer-
the trial court has ruled on it, but until costs and attorney fees and impose on
cial statements are outside the protection of
all appeals regarding it are exhausted. the plaintiff, his attorney or law firm such
the act, which specifically excludes from its
That is, Guam courts are not statuto- additional sanctions “as it determines
definition of an issue of public interest “pri-
rily authorized to order discovery to will be sufficient to deter repetition of
vate interests, such as statements directed
be conducted if the requesting party such conduct and comparable conduct
primarily toward protecting the speaker’s
can show good cause for it. by others similarly situated.”
commercial interests rather than toward
The judge will grant a SLAPP Moreover, a private cause of action
commenting on or sharing information
defendant’s motion to dismiss or for damages, costs and attorney fees
about a matter of public significance.”
strike unless the plaintiff can establish against the person responsible is
A motion to dismiss may be brought
by clear and convincing evidence that available to any person, not just the
under the D.C. anti-SLAPP Act, and the
the defendant’s petition activity is defendant, injured as a result of the
court will hold an expedited hearing on
not immune from liability. This stan- SLAPP suit.
the motion and issue a ruling “as soon as
practicable” after the hearing. Discovery
SLAPP Stick: Fighting frivolous lawsuits against journalists 7

8. to dismiss was frivolous or brought solely uses to decide whether a claim was wrongly cies. Discovery activities are placed on
to delay the proceedings. brought. In making this determination, the hold once the motion is filed, although the
court will consider the plaintiff’s complaint, judge may order discovery to be conducted
Florida the SLAPP defendant’s motion to dispose if the requesting party provides notice of
Florida is the only jurisdiction with two of the claim and any sworn statements its request to the other side and can show
separate anti-SLAPP statutes, and the containing facts on which the assertions in good cause for it. In ruling on the motion
scope of protection under each is rela- those documents are based. to dismiss or strike, a Georgia court will
tively narrow. Fla. Stat. § 768.295 (2011) A SLAPP defendant who prevails on the first determine whether the verification is
prohibits any governmental entity from motion is entitled to recover attorney fees false. If that is the case, the judge will grant
suing “a person or entity without merit and costs. Moreover, a court may — but the motion if he also determines that the
and solely because such person or entity is not required to — award the defendant statements in the verification indicate the
has exercised the right to peacefully any damages he sustained as a result of the claim was brought for an improper purpose
assemble, the right to instruct representa- suit. In addition, a defendant who prevails or based on protected statements. Alterna-
tives, and the right to petition for redress under Florida’s homeowner anti-SLAPP tively, a Georgia court will grant a SLAPP
of grievances before the various govern- law may be awarded treble damages, or defendant’s motion to dismiss or strike if it
mental entities of this state, as protected three times his actual damages. finds the statements were made “in good
by the First Amendment to the United faith.” Atlanta Humane Soc’y v. Harkins,
States Constitution and [the Florida Georgia 603 S.E.2d 289, 293—94 (Ga. 2004).
Constitution].” Fla. Stat. § 720.304(4) The Georgia anti-SLAPP law protects acts If the court denies the motion to dismiss
(2011) applies only to homeowners in a “in furtherance of the right of free speech or strike, the defendant is entitled to appeal
homeowners’ association and prohibits or the right to petition government for a that decision immediately. Id. at 291. Either
suits by individuals and business and gov- redress of grievances under the Constitu- party may ask the court to impose costs
ernmental entities based on homeowners’ tion of the United States or the Constitution and attorney fees on the other side at any
“appearance and presentation before a of the State of Georgia in connection with time during the course of the action, but
governmental entity on matters related to an issue of public interest or concern.” Ga. no later than 45 days after final disposition
the homeowners’ association.” Code Ann. § 9-11-11.1 (2010). However, of the case. Ga. Code Ann. § 9-11-11.1.
Notably, Florida has not adopted any stat- such an act is statutorily limited to state- Under this provision, a defendant may
ute that specifically governs civil SLAPP ments made before a legislative, executive or request this imposition even if the plaintiff
suits — or non-homeowner-related suits judicial proceeding or in connection with an voluntarily dismissed the action. More-
brought by a private plaintiff against a pri- issue under review by a governmental body, over, the court will, at the request of the
vate defendant based on the defendant’s a definition that is narrowly construed. For defendant or on its own, impose sanctions,
exercise of his constitutional rights of example, the state’s highest court held that which may include dismissal of the claim
assembly or petition. However, it does have a woman who made statements in online and an order to pay “reasonable expenses
a statute that allows a defendant who can postings and email messages complaining incurred because of the filing of the plead-
show that a losing plaintiff brought a claim about a health care facility’s poor treatment ing, including a reasonable attorney’s fee,”
without any factual or legal support for it to and care of her handicapped son could not against a plaintiff, his attorney or both for a
recover attorney fees from the other side. invoke the anti-SLAPP statute in a defama- wrongful verification that the claim is not a
Fla. Stat. § 57.105 (2011). The state’s inter- tion claim against her because, although her SLAPP suit. However, the statute does not
mediate appellate court upheld an award statements pertained to a matter of public specify how a court determines whether a
of attorney fees under this statute to news concern, they were not made in connection claim is wrongly verified.
media defendants for the plaintiff’s filing of with an existing official proceeding or inves-
a frivolous invasion of privacy and conspir- tigation, nor did they request the initiation Hawaii
acy to defame lawsuit. Thomas v. Patton, 939 of such. Berryhill v. Ga. Cmty. Support & Hawaii’s anti-SLAPP law protects against
So. 2d 139 (Fla. Dist. Ct. App. 2006). More- Solutions, Inc., 638 S.E.2d 278 (Ga. 2006). claims involving “oral or written testimony
over, the federal appellate court in Florida When a plaintiff files a lawsuit against submitted or provided to a governmental
has applied a federal rule of procedure to someone for an act that reasonably could be body during the course of a governmen-
sanction a plaintiff and his attorney after viewed as one in furtherance of the rights tal proceeding.” Haw. Rev. Stat. § 634F-1
the latter brought uninvestigated, frivolous of free speech or petition in connection (2011). Although this scope of protection
claims based on protected speech. World- with an issue of public interest or concern, is narrower than that provided under other
wide Primates, Inc. v. McGreal, 87 F.3d 1252 the Georgia anti-SLAPP statute requires states’ anti-SLAPP statutes, the Hawaii
(11th Cir. 1996); Worldwide Primates, Inc. v. the plaintiff and his attorney to file written measure includes several unique provisions.
McGreal, 26 F.3d 1089 (11th Cir. 1994). verifications under oath certifying that the A defendant sued solely because of his
Under Florida’s anti-SLAPP laws, a claim is grounded in fact and warranted by public participation before a governmental
defendant can file a motion to dispose of existing law or a good-faith argument for a body may file a motion to dismiss or strike
the claim, which the court will hear “at modification of existing law. Ga. Code Ann. the claim under Hawaii’s anti-SLAPP law.
the earliest possible time.” Fla. Stat. §§ § 9-11-11.1. If the plaintiff fails to make the §§ 634F-1, 634F-2. If the court fails to
768.295(5), 720.304(4)(c). Florida’s anti- verification within 10 days of being notified, rule on the motion in an expedited fashion,
SLAPP laws are two of only a handful to most likely by the defendant, of its require- the defendant is entitled to file an applica-
not address whether a SLAPP defendant’s ment, the court must dismiss the case. tion asking an appellate court to order the
motion to dispose of the claim will halt dis- If the plaintiff submits the required veri- lower court to make its decision, although
covery proceedings. Besides saying a defen- fications, the defendant can file a motion to the statute does not define “expedited.”
dant must show that the suit was brought dismiss or strike the case for improper veri- Hawaii’s anti-SLAPP statute is one of only
in violation of the relevant anti-SLAPP fication. The court will hear the motion a handful to place an absolute hold on dis-
law, neither specifies what standard a court within 30 days, barring court emergen- covery activities from the time the motion is
8 The Reporters Committee for Freedom of the Press

9. filed until not only the trial court has ruled ties are placed on hold from the time the ance of the evidence that the act on which
on it but until all appeals are exhausted. § motion is filed until the court has ruled on the SLAPP suit is based is a lawful one in
634F-2. That is, Hawaii courts are not it, although the judge may order discovery furtherance of the constitutional rights
statutorily authorized to order discovery to be conducted, assuming the request- of free speech or petition, the court will
to be conducted if the requesting party can ing party can show good cause for it, on grant the motion. In making this deter-
show good cause for it. The statute allows the question of whether the acts at issue mination, the judge will consider the
the plaintiff seven days to amend his com- are immune from liability. The court will plaintiff’s complaint, the SLAPP defen-
plaint so that its allegations are “pled with grant the motion unless the plaintiff can dant’s motion to dismiss and any sworn
specificity.” In ruling on the motion to show by clear and convincing evidence that statements containing facts on which the
dismiss or strike, the judge will review the the defendant’s acts are not in furtherance assertions in those documents are based.
amended complaint, if submitted, and grant of the rights of petition, speech, association If a SLAPP defendant prevails on
the motion unless the plaintiff can show that or participation in government and thus the motion to dismiss, he is entitled to
it is more likely than not that the allegations not immune from liability. The statute recover costs and attorney fees. § 34-7-
do not constitute a SLAPP suit. In mak- does not specify what evidence the court 7-7. Conversely, the defendant must pay
ing this determination, a Hawaii court will will consider in making this determination. the plaintiff’s costs and attorney fees if the
consider the plaintiff’s complaint and the If the court denies the motion to dis- court finds that the motion to dismiss was
SLAPP defendant’s motion to dismiss or miss or strike, the defendant is entitled to frivolous or brought solely to delay the
strike. Hawaii’s anti-SLAPP statute includes an expedited review of the order by the proceedings. § 34-7-7-8.
a provision allowing any governmental body appellate court. However, if he prevails,
to which the SLAPP defendant’s acts were the court will impose costs and attorney Iowa
directed to intervene to defend or otherwise fees on the other party. Stat. 110/25. There is no statute or cases in Iowa
support the defendant in the suit. addressing SLAPP suits.
If the court denies the motion to dismiss Indiana
or strike, the defendant is entitled to appeal To challenge a lawsuit as a SLAPP suit Kansas
that decision immediately. However, if he in Indiana, a defendant must show that There is no statute or cases in Kansas
prevails, the court will impose costs and he is being sued for any act “in further- addressing SLAPP suits.
attorney fees on the other side, and order ance of the person’s right of petition or
him to pay the successful defendant actual free speech under the Constitution of the Kentucky
damages or $5,000, whichever is greater. United States or the Constitution of the There is no statute or cases in Kentucky
Moreover, the Hawaii anti-SLAPP law State of Indiana in connection with a pub- addressing SLAPP suits.
requires the court to impose “[s]uch addi- lic issue.” Ind. Code § 34-7-7-5 (2011). He
tional sanctions upon the [plaintiff], its must also show that the action was “taken Louisiana
attorneys, or law firms as the court deter- in good faith and with a reasonable basis in To challenge a lawsuit as a SLAPP suit in
mines shall be sufficient to deter repetition law and fact.” Moreover, the action must Louisiana, a defendant must show that the
of the conduct and comparable conduct by be “lawful,” meaning that speech consti- cause of action arose from “any act of that
others similarly situated.” In addition, a pri- tuting defamation, extortion or any other person in furtherance of the person’s right
vate cause of action for damages, costs and unlawful act will fall outside the protection of petition or free speech under the United
attorney fees against the person responsible of the statute. § 34-7-7-9(d). Although the States or Louisiana Constitution in con-
is available to any person, not just the defen- statute does not define the right of petition nection with a public issue.” La. Code Civ.
dant, injured as a result of the SLAPP suit. or free speech in connection with a public Proc. Ann. art. 971 (2010). Under the stat-
issue, Indiana courts have interpreted it ute, the rights of free speech or petition in
Idaho to include media coverage of newsworthy connection with a public issue include four
There is no statute or cases in Idaho events, including a newspaper’s coverage categories of activities: statements made
addressing SLAPP suits. of a town council, Poulard v. Lauth, 793 before a legislative, executive or judicial
N.E.2d 1120 (Ind. Ct. App. 2003); a news- proceeding; statements made in connec-
Illinois paper’s publication of a town attorney’s tion with an issue under consideration by
The Illinois anti-SLAPP law immunizes statements about another attorney, Shepard a governmental body;statements made in a
from civil liability “[a]cts in furtherance v. Schurz Commc’ns, Inc., 847 N.E.2d 219 place open to the public or a public forum
of the constitutional rights to petition, (Ind. Ct. App. 2006); and a television sta- in connection with an issue of public inter-
speech, association, and participation tion’s investigative report about the safety est; and any other conduct in furtherance
in government . . . regardless of intent and legality of pharmaceuticals, CanaRx of the exercise of free-speech or petition
or purpose, except when not genuinely Servs., Inc. v. LIN Television Corp., No. rights in connection with a public issue.
aimed at procuring favorable govern- 1:07-cv-1482-LJM-JMS, 2008 U.S. Dist. The Louisiana anti-SLAPP law allows
ment action, result, or outcome.” 735 Ill. LEXIS 42236 (S.D. Ind. May 29, 2008). a defendant to file a motion to strike the
Comp. Stat. 110/15 (2011). The statute The Indiana anti-SLAPP law allows a complaint, which the court will hear within
does not define these acts. defendant to file a motion to dismiss the 30 days unless the docket is overbooked.
The Illinois anti-SLAPP statute gives complaint, which the court will hear and Discovery activities are placed on hold from
defendants the ability to move to dismiss decide within 180 days. Ind. Code § 34-7- the time the motion is filed until the court
or strike claims that infringe the exercise of 7-9. Discovery activities irrelevant to the has ruled on it, although the judge may order
these constitutional rights. The court will motion are placed on hold once it is filed. discovery to be conducted if the requesting
hear and decide the motion within 90 days. § 34-7-7-6. Under the statute, the defen- party provides notice of its request to the
Stat. 110/20. If it fails to do so, the defen- dant must specify the public issue that other side and can show good cause for it.
dant is entitled to seek expedited review prompted his speech or petition activity. § In ruling on the motion to strike, a Louisi-
in the appellate court. Discovery activi- 34-7-7-9. If he can show by a preponder- ana court will first determine whether the
SLAPP Stick: Fighting frivolous lawsuits against journalists 9

10. lawsuit arose from an act protected by the If the court grants the motion to dismiss, the cause of action is based on the defen-
federal and state constitutional guarantees it may — but is not required to — order dant’s exercise of his right of petition under
of free speech or petition. Darden v. Smith, the plaintiff to pay the prevailing SLAPP the federal or Massachusetts Constitutions.
879 So. 2d 390 (La. Ct. App. 2004). If that defendant’s costs and attorney fees. Mass. Gen. Laws ch. 231, § 59H (2011).
is the case, the judge will grant the motion Under the statute, the petition right
unless the plaintiff can introduce evidence Maryland includes five categories of activities: state-
establishing a probability that he will prevail The Maryland anti-SLAPP law protects ments made before a legislative, executive
on the claim. La. Code Civ. Proc. Ann. art. defendants from claims based on their or judicial proceeding; statements made in
971. In making this determination, the court “communicati[ons] with a federal, State, connection with an issue under consider-
will consider the plaintiff’s complaint, the or local government body or the public at ation by a governmental body; statements
SLAPP defendant’s motion to strike and any large, if the defendant, without constitu- reasonably likely to encourage a govern-
sworn statements containing facts on which tional malice, reports on, comments on, mental body’s consideration of an issue;
the assertions in those documents are based. rules on, challenges, opposes, or in any statements reasonably likely to enlist pub-
If the court grants the motion to strike, other way exercises rights under the First lic participation in an effort to bring about
the defendant is entitled to recover costs Amendment of the U.S. Constitution or such governmental consideration; and any
and attorney fees from the other side. . . . the Maryland Declaration of Rights other statements protected by the consti-
regarding any matter within the author- tutional right to petition the government.
Maine ity of a government body or any issue of However, the state’s highest court has
Maine’s anti-SLAPP law protects against public concern.” Md. Code Ann., Cts. & limited this petition right definition to
claims based on a person’s exercise of his Jud. Proc. § 5-807 (2011). However, this statements made on one’s “own behalf”
right of petition under the federal or state statutory definition of a SLAPP suit also and thus found the anti-SLAPP law inap-
constitutions. Me. Rev. Stat. tit. 14, § 556 requires that it be “[b]rought in bad faith” plicable to a journalist’s objective, factual
(2011). Under the statute, the petition right — the only such requirement in any anti- news report, even though the account
includes five categories of activities: state- SLAPP law nationwide — and “[i]ntended concerned an issue under review by a gov-
ments made before a legislative, executive to inhibit or [does] inhibit[] the exercise ernmental body and aimed to enlist public
or judicial proceeding; statements made in of rights under the First Amendment of participation in the matter. Fustolo v. Hol-
connection with an issue under consider- the U.S. Constitution or . . . the Maryland lander, 920 N.E.2d 837 (Mass. 2010).
ation by a governmental body; statements Declaration of Rights.” Although there are The Massachusetts anti-SLAPP law
reasonably likely to encourage a govern- no Maryland state court published reports allows a defendant to file a motion to dis-
mental body’s consideration of an issue; interpreting the statute, the federal court miss the complaint, which the court will
statements reasonably likely to enlist public in Maryland, in two instructive but non- hear and decide “as expeditiously as pos-
participation in an effort to bring about such binding decisions involving the law, held sible.” Mass. Gen. Laws ch. 231, § 59H.
governmental consideration; and any other that factual disputes as to whether the Discovery activities are placed on hold
statements protected by the constitutional suits were brought in bad faith precluded from the time the motion is filed until the
right to petition the government. their dismissal. Ugwuonye v. Rotimi, No. court rules on it, although the judge, after
The Maine anti-SLAPP statute gives PJM 09-658, 2010 WL 3038099, at *4 (D. a hearing on the matter, may order dis-
defendants the ability to move to dismiss Md. July 30, 2010); Russell v. Krowne, No. covery to be conducted if the requesting
claims that infringe the exercise of the DKC 2008-2468, 2010 WL 2765268, at party can show good cause for it.
petition right. The law requires the court *3 (D. Md. July 12, 2010). The judge will grant the motion unless
to hear and decide the motion “with as The Maryland anti-SLAPP law allows a the plaintiff can show that the defendant’s
little delay as possible.” Discovery activi- defendant to move to dismiss the claim or claimed exercise of the petition right lacked
ties are placed on hold from the time the to place the proceeding on hold until the any reasonable factual support or arguable
motion is filed until the court has ruled matter about which he communicated to basis in law and his acts caused actual injury
on it, although the judge, after a hearing the government or the public is resolved. to the plaintiff. In making this determina-
on the matter, may order discovery to be Md. Code Ann., Cts. & Jud. Proc. § 5-807. tion, a Massachusetts court will consider the
conducted if the requesting party can show A court is required to hear the motion to plaintiff’s complaint, the SLAPP defendant’s
good cause for it. The judge will grant the dismiss “as soon as practicable.” The stat- motion to dismiss and any sworn statements
motion unless the plaintiff can show that ute does not specify whether the filing of containing facts on which the assertions in
the defendant’s claimed exercise of the these motions tolls discovery activities, those documents are based.
petition right lacked any reasonable factual though presumably a court’s order granting Massachusetts’ anti-SLAPP statute
support or arguable basis in law and his a defendant’s motion to place the proceed- includes a provision allowing the state
acts caused actual injury to the plaintiff. In ing on hold until the commented-on mat- attorney general, on his own behalf or on
making this determination, a Maine court ter is resolved would extend to discovery behalf of any governmental body to which
will consider the plaintiff’s complaint and proceedings. In addition, the statute does the SLAPP defendant’s acts were directed,
the SLAPP defendant’s motion to dismiss not specify what standard a court will use to intervene to defend or otherwise support
and any sworn statements containing facts to decide these motions or what evidence it the defendant in the motion to dismiss.
on which the assertions in those docu- will consider in making this determination. Notably, a SLAPP defendant sued in
ments are based. Maine’s anti-SLAPP stat- Maryland’s anti-SLAPP law is one of federal court in Massachusetts may not
ute includes a provision allowing the state only a handful to not address costs and be able to rely on the anti-SLAPP statute
attorney general, on his own behalf or on attorney fees. because the federal court there has held
behalf of any governmental body to which that the measure is a procedural rule that
the SLAPP defendant’s acts were directed, Massachusetts is inapplicable in federal court. Stuborn
to intervene to defend or otherwise support T challenge a lawsuit as a SLAPP suit in
o Ltd. P’ship v. Bernstein, 245 F. Supp. 2d
the defendant on the motion to dismiss. Massachusetts, a defendant must show that 312 (D. Mass. 2003).
10 The Reporters Committee for Freedom of the Press

11. If the court denies the motion, the Stat. § 554.04. Moreover, it will award dant’s motion to dismiss, it will impose
defendant is entitled to appeal that deci- damages to a successful defendant who costs and attorney fees on the other side,
sion immediately. Fabre v. Walton, 802 can show that the plaintiff brought the assuming the defendant complied with
N.E.2d 1030 (Mass. 2004). However, if it claim “for the purpose of harassment, to certain filing deadlines. Conversely, the
grants the motion, the court will impose inhibit the [defendant’s] public partici- court will award costs and attorney fees
costs and attorney fees on the other party. pation, to interfere with [his] exercise of to the plaintiff if it finds that the motion
Mass. Gen. Laws ch. 231, § 59H. protected constitutional rights, or other- to dismiss was frivolous or brought solely
wise wrongfully injure the [defendant].” to delay the proceedings. Either party is
Michigan In addition, the court may — but is not entitled to expedited review of the court’s
The Michigan House of Representatives required to — award punitive damages. decision on the motion to dismiss.
in August 2010 passed House Bill 5036, Mississippi
which provides a remedy for SLAPP defen- There is no statute or cases in Missis- Montana
dants. However, as of press time, it did not sippi addressing SLAPP suits. There is no statute or cases in Montana
appear that the state Senate had passed the addressing SLAPP suits.
bill or that it had otherwise become law. Missouri
The Missouri anti-SLAPP law applies Nebraska
Minnesota to “[a]ny action seeking money damages The Nebraska anti-SLAPP statute pro-
The Minnesota anti-SLAPP statute against a person for conduct or speech tects defendants in legal actions involving
immunizes from liability “[l]awful conduct undertaken or made in connection with public petition and participation. Neb.
or speech that is genuinely aimed in whole a public hearing or public meeting, in a Rev. Stat. § 25-21, 243 (2010). An action
or in part at procuring favorable govern- quasi-judicial proceeding before a tribu- involving public petition and participa-
ment action . . . unless the conduct or nal or decision-making body of the state tion is a public applicant or permittee’s
speech constitutes a tort or a violation of a or any political subdivision of the state.” action for damages “materially related
person’s constitutional rights.” Minn. Stat. Mo. Rev. Stat. § 537.528 (2011). A pub- to any efforts of the defendant to report
§ 554.03 (2011). Under the statute, such lic meeting in a quasi-judicial proceed- on, comment on, rule on, challenge, or
speech or conduct is public participation. § ing includes any meeting held by a state oppose the application or permission[.]”
554.01. The state’s intermediate appellate or local governmental entity, including § 25-21, 242. A “public applicant or per-
court has held that the statute does not pro- meetings of or presentations before state, mittee” is defined as “any person who has
vide immunity to statements “intentionally county, city, town or village councils, applied for or obtained a permit, zoning
aimed at audiences having no connection with planning commissions or review boards. change, lease, license, certificate, or other
the public . . . controversy.” Freeman v. Swift, The state’s intermediate appellate court entitlement for use or permission to act
776 N.W.2d 485 (Minn. Ct. App. 2009). has held that the underlying claim must from any government body or any person
Minnesota’s anti-SLAPP law allows a be for money damages and not declara- with an interest, connection, or affiliation
defendant who is the subject of a claim tory or injunctive relief, which seek, with such person that is materially related
that “materially relates to an act . . . that respectively, determinations from a court to such application or permission.”
involves public participation” to file a about a particular legal issue or court The statute does not provide for a specific
motion to dismiss or strike the complaint. orders to bar certain acts. Moschenross v. anti-SLAPP motion to dismiss. However,
Minn. Stat. § 554.02. Discovery activi- St. Louis County, 188 S.W.3d 13 (Mo. Ct. it says a court considering a motion to dis-
ties are placed on hold from the time the App. 2006). miss an action involving public petition and
motion is filed until not only the trial A defendant sued for damages based on participation filed under existing procedural
court has ruled on it but until all appeals his acts in connection with such a public rules must expedite and grant preference in
regarding it have been resolved. meeting can bring a motion to dismiss hearing the motion. § 25-21, 245. Nebras-
However, the judge, after a hearing on the under the Missouri anti-SLAPP statute. ka’s anti-SLAPP law is one of only a hand-
matter, may order discovery to be conducted Mo. Rev. Stat. § 537.528. The court will ful to not address whether an anti-SLAPP
if the requesting party can show good cause consider the motion “on a priority or motion suspends discovery proceedings.
for it. The court will grant the motion expedited basis.” If the court fails to rule The law requires the court to grant the
unless the plaintiff can show by clear and on the motion in an expedited fashion, motion unless the plaintiff can show that
convincing evidence that the defendant’s either party is entitled to seek expedited the claim has a substantial basis in law or is
acts are not immune from liability. The stat- review in the appellate court, although the supported by a substantial argument for a
ute does not specify what evidence the court statute does not define “expedited.” modification of existing law. The plaintiff
will consider in making this determination. Missouri’s anti-SLAPP statute is one of must also establish by clear and convinc-
Minnesota’s anti-SLAPP statute includes only a handful to place an absolute hold ing evidence that the communication was
a provision allowing any governmental on discovery activities from the time the made with knowledge of or reckless disre-
body to which the SLAPP defendant’s motion is filed until not only the trial gard for its falsity if such truth or falsity is
acts were directed to intervene to defend court has ruled on it, but until all appeals material to the underlying claim. § 25-21,
or otherwise support the defendant. regarding it are exhausted. That is, Mis- 244. The statute does not specify what
If the court denies the motion to dis- souri courts are not statutorily authorized evidence a court will consider in making
miss or strike, the defendant is entitled to to order discovery to be conducted if the this determination.
appeal that decision immediately. Special requesting party can show good cause If the court grants the motion to dismiss,
Force Ministries v. WCCO Television, 576 for it. The statute does not specify what it may — but is not required to — order
N.W.2d 746 (Minn. 1998). However, if standard a court will use to decide these the plaintiff to pay the prevailing SLAPP
it grants the motion, the court will order motions or what evidence it will consider defendant’s costs and attorney fees. §
the plaintiff to pay the prevailing SLAPP in making this determination. 25-21, 243. Moreover, it may award dam-
defendant’s costs and attorney fees. Minn. If the court grants the SLAPP defen- ages to a successful defendant who can
SLAPP Stick: Fighting frivolous lawsuits against journalists 11

12. show that the plaintiff brought the claim appellate court declined to recognize an to delay the proceedings. Either party is
“for the purpose of harassing, intimidat- anti-SLAPP defense, finding it unneces- entitled to expedited review of the court’s
ing, punishing, or otherwise maliciously sary given the existence of the similar but decision on the motion to dismiss.
inhibiting the free exercise of petition, broader tort of malicious use of process,
speech, or association rights.” which the court reiterated with strong New York
language. LoBiondo v. Schwartz, 733 A.2d The New York anti-SLAPP statute pro-
Nevada 516 (N.J. Super. Ct. App. Div. 1999). tects defendants in legal actions involving
Under the Nevada anti-SLAPP statute, a The plaintiff in a malicious use of process public petition and participation. N.Y.
person who engages in a good faith com- action must prove that the original action Civ. Rights Law § 70-a (McKinney 2011).
munication in furtherance of the right of was brought without probable cause and An action involving public petition and
petition is immune from civil liability for motivated by malice, terminated favorably participation is a public applicant or per-
claims based on the communication. Nev. to the plaintiff and caused the plaintiff to mittee’s action for damages “materially
Rev. Stat. § 41.650 (2010). Under the stat- suffer a special grievance. Courts have held related to any efforts of the defendant to
ute, a good faith communication in further- that the malice element is met by a showing report on, comment on, rule on, challenge
ance of the petition right includes three that the purpose of the suit was to retaliate or oppose such application or permis-
categories of communications that are true against the defendant for his exercise of the sion.” § 76-a. A “public applicant or per-
or made without knowledge of their falsity: constitutional rights of expression or peti- mittee” is defined as “any person who has
those aimed at procuring governmental or tion, or to stop the defendant from further applied for or obtained a permit, zoning
electoral action; those informing or com- exercise of these rights, or both. Further, a change, lease, license, certificate or other
plaining to a federal, state or local legisla- special grievance has been defined as inter- entitlement for use or permission to act
tor or employee about a matter reasonably ference with a liberty interest, which may from any government body, or any person
of concern to the respective governmental include suppression of public debate. with an interest, connection or affiliation
entity; and statements made in direct con- with such person that is materially related
nection with an issue under consideration New Mexico to such application or permission.”
by a governmental body. § 41.637. The New Mexico anti-SLAPP law applies The state’s intermediate appellate court
The Nevada anti-SLAPP statute gives to “[a]ny action seeking money damages has construed these statutory definitions
defendants the ability to file a motion to against a person for conduct or speech narrowly. For example, it reversed a trial
dismiss claims infringing the good faith undertaken or made in connection with court’s finding that a defendant could avail
exercise of this right of petition. § 41.660. a public hearing or public meeting in a herself of the anti-SLAPP statute, hold-
The court is statutorily required to rule quasi-judicial proceeding before a tribunal ing that the woman’s statements to the
on the motion within 30 days of its filing. or decision-making body of any political press about the plaintiff’s alleged misuse
Nevada’s anti-SLAPP statute is one of only subdivision of the state.” N.M. Stat. Ann. § of funds were “not materially related to
a handful to place an absolute hold on dis- 38-2-9.1 (2011). A public meeting in a quasi- any efforts by her to report on, comment
covery activities from the time the motion judicial proceeding includes any meeting on, challenge, or oppose an application by
is filed until not only the trial court has held by a state or local governmental entity, the plaintiff for a permit, license, or other
ruled on it, but until all appeals regarding including meetings of or presentations authorization from a public body.” Long
it are exhausted. That is, Nevada courts before state, city, town or village councils, Island Ass’n for AIDS Care v. Greene, 702
are not statutorily authorized to order dis- planning commissions or review boards. N.Y.S.2d 914 (N.Y. App. Div. 2000).
covery to be conducted if the requesting A defendant sued for damages based on Likewise, “merely advocating one’s
party can show good cause for it. his acts in connection with such a public agenda at public meetings, or initiating legal
The statute does not specify what stan- meeting can bring a motion to dismiss action, does not bring an individual within
dard a court will use to decide these under the New Mexico anti-SLAPP stat- the ambit of an applicant or permittee” as
motions or what evidence it will consider ute. The court will consider the motion defined in the statute. Hariri v. Amper, 854
in making this determination. Nevada’s “on a priority or expedited basis.” If the N.Y.S.2d 126 (N.Y. App. Div. 2008).
anti-SLAPP statute includes a provision court fails to rule on the motion in an The statute does not provide for a spe-
allowing the state attorney general or expedited fashion, either party is entitled cific anti-SLAPP motion to dismiss. How-
other governmental legal representative to to seek expedited review in the appellate ever, existing procedural rules state that a
defend or otherwise support the defendant. court, although the statute does not define court considering a motion to dismiss a
If a SLAPP defendant prevails on a motion “expedited.” New Mexico’s anti-SLAPP case involving public petition and partici-
to dismiss, the court will award him court law is one of only a handful to not address pation must grant preference in hearing
costs and attorney fees. § 41.670. Moreover, the effect of a SLAPP defendant’s motion the motion. N.Y.C.P.L.R. 3211(g) (McK-
the Nevada anti-SLAPP law enables a suc- to dispose of the claim on discovery pro- inney 2011). New York’s anti-SLAPP law
cessful defendant to file a SLAPPback suit ceedings. The statute does not specify is one of only a handful to not address the
against the plaintiff to recover actual and what standard a court will use to decide effect of a SLAPP defendant’s motion to
punitive damages and the attorney fees and these motions or what evidence it will dispose of the claim on discovery proceed-
costs of bringing the separate action. consider in making this determination. ings. The rule requires the court to grant
If the court grants the SLAPP defen- the motion unless the plaintiff can show
New Hampshire dant’s motion to dismiss, it will impose that the claim has a substantial basis in law
There is no statute or cases in New costs and attorney fees on the other side, or is supported by a substantial argument
Hampshire addressing SLAPP suits. assuming the defendant complied with for a modification of existing law.
certain filing deadlines. Conversely, the The plaintiff must also establish by clear
New Jersey court will award costs and attorney fees and convincing evidence that the com-
There is no anti-SLAPP statute in New to the plaintiff if it finds that the motion munication was made with knowledge
Jersey. Moreover, the state’s intermediate to dismiss was frivolous or brought solely of or reckless disregard for its falsity if
12 The Reporters Committee for Freedom of the Press