SLAPP Stick - Fighting Lawsuits Against Journalists

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SLAPP Stick - Fighting Lawsuits Against Journalists

  1. 1. SLAPP Stick: Summer 2011Fighting frivolouslawsuitsagainstjournalists 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 insideAstate-by-stateguide toanti-SLAPPlaws.
  2. 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 activitiespublic 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 specificriver on which he planned to build the T prevent this chilling effect on speech o activities a lawsuit must target to qualify asstructure 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 includepermit 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 effortswe need a strong anti-SLAPP provision,” sions and extended protections somewhat to report on or oppose a building permitLaHart 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 judiciallic participation, SLAPPs have become an for SLAPP defendants were introduced into proceeding or in connection with an issueall-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 oftal 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 thecriticized his involvement in a city’s eminent required to hear early in the court proceed- nation’s strongest anti-SLAPP law, thedomain plan, alleging 79 separate grounds ings, because it involves speech on a mat- California statute protects “any written orfor defamation. Finding that none of the ter of public concern. The plaintiff then oral statement or writing made in a placestatements at issue defamed the plaintiff, a has the burden of showing a probability open to the public or a public forum inTexas 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 connectionlikely fail on their legal merits if fully liti- the judge determines if the claim has any with an issue of public interest would begated. 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 sharpof 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 onlymark infringement, emotional distress or, costs from the plaintiff. to individuals petitioning the governmentlike 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 under2 The Reporters Committee for Freedom of the Press
  3. 3. both of Florida’s anti-SLAPP statutes isrelatively narrow and unlikely to protect Anti-SLAPP laws and journalistsjournalists 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. Thement from suing “a person or entity with- evaluation is based on the scope of protection for speech by journalists — defined broadly asout 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 peacefullyassemble, 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 redressof grievances,” while the other applies only • The addition of one star for protection for speech made in any forum in connection with anto 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 issueute that addresses civil SLAPP suits like the of public concern or interest, not just speech made in connection with an issue underone the Palm Beach County homeowner consideration by a governmental body or speech designed to procure favorablebrought against the three neighbors who government action (those statutes that broadly define issues of public concern or interestopposed 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 statutethat allows a defendant who can show that • The addition of one star for the mandatory, not just the permissive, award of costs anda losing plaintiff brought a claim with- attorney fees to a prevailing SLAPP defendant; andout any factual or legal support for it to • The subtraction of one star for the inclusion of additional burdens, such as a requirementrecover attorney fees from the other side. that the SLAPP suit be brought in “bad faith” or that the statements be made withoutLaHart relied on this law when she asked knowledge of or reckless disregard for their falsity.a judge to order the neighbor to pay themore than $100,000 she said her clientswould have incurred in attorney fees dur-ing the six years of unnecessary litigation Mandatoryhad 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 3missed the claims after LaHart notified PP Arkansas 3 3 3 -3him of her intent to seek attorney fees PPPP California 3 3 3 3under this statute. PP Colorado 3 3 “The Court finds that the action filed P Connecticut 3by the Plaintiff was a frivolous lawsuit in PP Delaware 3 3retaliation against these Defendants for PPP District of Columbia 3 3 3engaging in their constitutionally pro- PP Florida 3 3tected activities,” Florida Judge David PPP Georgia 3 3 3F. Crow said in his June order granting PP Hawaii 3 3LaHart’s motion for attorney fees, noting PPPP Illinois* 3 3 3 3the plaintiff’s lack of reasonable inquiryand good faith basis for his allegations. PPP Indiana 3 3 3 3 -3 The plaintiff, who claimed an attorney- PPPP Louisiana 3 3 3 3client privilege or lack of knowledge in PPP Maine 3 3 3response to deposition questions about PP Maryland 3 3 3 -3the charges, had no support for his allega- PPP Massachusetts 3 3 3tions that a petition against the proposed PPP Minnesota 3 3 3dock and an alleged misstatement about PP Missouri 3 3its dimensions defamed him, Crow held. PP Nebraska 3 3 “The Defendants’ freedom to petition PP Nevada 3 3 3 -3their government and speak their minds PP New Mexico 3 3regarding matters of public concern New York PP 3 3are among the most basic fundamental P Oklahoma 3constitutional rights guaranteed to the PPPP Oregon 3 3 3 3citizens of this state,” he said. “Clearly the PP Pennsylvania 3 3 3 -3purpose of [the statute] is to deter frivo- PPPP Rhode Island 3 3 3 3lous pleadings by placing the financialresponsibility upon those who engage in P Tennessee 3 3 -3such activities. . . . This is the situation PPPP Texas 3 3 3 3when such sanctions are proper.” PP Utah 3 3 Accordingly, the judge was scheduled PPPP Vermont 3 3 3 3to hold a hearing in August to determine PPPP Washington 3 3 3 3the amount of fees the plaintiff must pay P West Virginia 3LaHart, she said. While this statute may PPP Guam 3 3 3help 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. 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 toimportant protections of specific anti- what I wrote. I realized that was part of produce documents, sit for a deposition orSLAPP 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 (meaningceedings, 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 motionA SLAPPed blogger’s push for amend the state anti-SLAPP statute to to dismiss or failure to rule on such in anreform 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 reviewattorney fees is not authorized under Mary- costs and attorney fees. (meaning an accelerated briefing andland’s anti-SLAPP law — the only one “A SLAPP suit is a desperate attempt by hearing schedule when the case does endnationwide 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 courtMeister 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 haveConaway 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 jurisdictionsupport for these allegations, Meister relied expedited appellate review of orders deny- differs significantly from that of otherson 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 theMd., 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 sueding and dealing with others, and became and painless dismissal of meritless claims for activities related to the exercise ofshort-tempered and ill because of the stress based on the exercise of the rights of free their rights to free speech or to petitionand distress the column caused, Conaway speech or petition before they amass a the government. It does not replace thesued Meister and the owners of the site. mountain of attorney fees that forces legal advice from an attorney in one’s ownMeister filed a motion to dismiss the suit those speaking out about matters of pub- state when confronted with a specific legalunder the state anti-SLAPP statute. (The lic concern into silence. Without the leg- problem. Journalists who have additionalReporters Committee for Freedom of the islative remedy, speech about important questions or who need to find a lawyerPress filed a friend-of-the-court letter brief issues often remains chilled, anti-SLAPP with experience litigating these types ofin 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 theybecause she had, in fact, signed a docu- were served with one of these [frivolous] Alabamament stipulating that the Randallstown suits, even though it was baseless,” said There is no statute or cases in Alabamaaddress was her primary residence for Florida environmental attorney LaHart, addressing SLAPP suits.tax purposes. Her lawyer told the judge referring to clients’ challenges of variousthe councilwoman signed the document land developers’ actions. Alaskaby mistake years ago and did not see it There is no statute or cases in Alaskaagain 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 guiderecords 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 protectsfree, 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 tofree 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 petition10, and they didn’t serve me until June 1. past legislative session. activities are statements made as part of anFrom 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 bodya lawyer, everyone is telling me to find a activities that qualify for protection; concerning an issue under review by thatlawyer,’” Meister said in a telephone inter- * the procedural mechanisms and evi- body to influence governmental actionview shortly after the hearing. “It took away dentiary standards required to obtain or results. Governmental proceedingsfrom 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 includeevent, 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 government4 The Reporters Committee for Freedom of the Press
  5. 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 modificationsions, 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 thedefendants the ability to file a motion to an act in furtherance of the rights of free defendant, of its requirement, the courtdismiss 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 toand 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 ondefendant’s motion to dispose of the claim concern include statements made before a hold once the motion is filed, although thewill suspend discovery proceedings. The legislative, executive or judicial proceed- judge may order discovery to be conductedstatute requires an Arizona court to grant ing, or those relating to a matter under if the requesting party can show good causethe motion to dismiss unless the plaintiff consideration by a governmental body. § for it. In ruling on the motion to dismisscan show that the defendant’s claimed exer- 16-63-503. A privileged communication is a or strike, an Arkansas court will likely firstcise of the petition right lacked any reason- statement made in the course of official duty determine whether the verification falselyable 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 theplaintiff. 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 theand sworn statements containing facts on disregard for their falsity. legal claim was legitimate or brought it forwhich 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 ofmotion 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 orattorney fees. Conversely, if the court issue of public interest or concern, the anti- both. The sanctions may include dismissalfinds 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 reasonableney 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. 6. a prevailing SLAPP defendant may be defendant established that the lawsuit arose Connecticutentitled 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’sof “harassing, intimidating, punishing, or Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. intermediate appellate court discussed themaliciously inhibiting a person or entity Ct. App. 1997). If that is the case, the judge nature of the causes of action in a case thatfrom making a privileged communication will grant the motion unless the plaintiff can arose from the defendant’s act of filing aor performing an act in furtherance of the show a probability that he will prevail on complaint against the plaintiff-attorneyright 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’sCalifornia 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 distinctivein California, a defendant must show that If the court grants the motion to strike, elements of a SLAPP suit are (1) a civilhe 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 somenection 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 petitionnection with a public issue include four “SLAPPback” suit against his opponent. state agencies and have the ultimate effectcategories of activities: statements made § 425.18. Under this remedy, a SLAPP of ‘chilling’ any such action.” Althoughbefore a legislative, executive or judicial defendant who won his motion to strike it stopped short of deciding whether theproceeding; statements made in connec- may sue the person who filed the SLAPP plaintiff’s actions constituted a SLAPPtion 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 fromplace 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 Connecticutof the exercise of free-speech or petition delay the proceedings. § 425.16. Either trial court opinions adopted a standardrights in connection with a public issue party is entitled to immediately appeal the requiring a SLAPP suit, in order to beor an issue of public interest. California court’s decision on the motion to strike. identified and dismissed as such, to becourts consider several factors when evalu- “objectively baseless in that no reasonableating whether a statement relates to an Colorado litigant could realistically expect successissue of public interest, including whether Although there is no statute in Colorado on the merits and . . . conceal[ing] anthe subject of the statement at issue was a addressing SLAPP suits, the state’s high- effort to interfere improperly with theperson or entity in the public eye, whether est court has held that, because it threat- defendant’s rights.” Royce v. Willowbrookthe 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 1265404widespread 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 Delawarenomic 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 definednot in the public eye do not relate to an lacked any reasonable factual support or as those brought by a public applicant orissue of public interest. Dyer v. Childress, 55 cognizable basis; the primary purpose permittee in response to the defendant’sCal. 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. 10complaint, 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 hasDiscovery activities are placed on hold from standard will safeguard the constitutional applied for or obtained a permit, zoningthe time the motion is filed until the court right of citizens to utilize the administra- change, lease, license, certificate or otherhas ruled on it, although the judge may order tive and judicial processes for redress of entitlement for use or permission to actdiscovery to be conducted if the requesting legal grievances without fear of retalia- from any government body, or any personparty provides notice of its request to the tory litigation and, at the same time, will with an interest, connection or affiliationother side and can show good cause for it. permit those truly aggrieved by abuse of with such person that is materially relatedIn 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 with6 The Reporters Committee for Freedom of the Press
  7. 7. an action involving public petition and par- activities are placed on hold from the time strate that the claim is likely to succeed onticipation 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 makingof 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,” meaningcourt 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 requiredsubstantial basis in fact and law or a substan- action is one involving an act in further- to — award attorney fees and costs to thetial argument for a modification of existing ance of the right of advocacy on an issue prevailing defendant. Conversely, thelaw. The plaintiff must also establish by of public interest, the court will grant the court may award costs and attorney feesclear and convincing evidence that the com- motion unless the plaintiff can demon- to the plaintiff if it finds that the motionmunication was made with knowledge of orreckless disregard for its falsity if such truthor falsity is material to the underlying claim.§ 8136. The statute does not specify whatevidence the court will consider in makingthis 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 claimattorney 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 thatdamages to a defendant who can demon- have such laws.) It immunizes from no reasonable person would concludestrate that the action was brought “for the civil liability acts in furtherance of that the act involved petitioning thepurpose of harassing, intimidating, pun- the constitutional right to petition government and subjectively baselessishing or otherwise maliciously inhibiting the government in an attempt to pro- in the sense that the statements werethe free exercise of speech, petition or cure favorable action. 7 Guam Code not genuinely aimed at procuringassociation rights.” Ann. § 17104 (2010). Under the stat- favorable governmental action, but ute, acts in furtherance of the petition were actually an attempt to use theDistrict 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, thefurtherance 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 swornmade in connection with an issue under that infringe the exercise of the peti- statements containing facts on whichconsideration by a governmental body or tion right. § 17105. the assertions in those documents areone 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 apublic interest. The act also applies to suits motions,” and the defendant is entitled provision allowing the island attorneyarising from expressive conduct involving to seek expedited review in the appel- general or any governmental body topetitioning the government or communi- late court if the trial court fails to rule which the SLAPP defendant’s actscating views to members of the public in on the motion in an expedited fashion, were directed to intervene, defend orconnection 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 toronmental, economic, or community well of only a handful to place an absolute an expedited review of the order by thebeing; the District government; a public hold on discovery activities from the appellate court. However, if the SLAPPfigure; or a good, product or service in the time the motion is filed until not only defendant prevails, the court will awardmarket place.” However, certain commer- the trial court has ruled on it, but until costs and attorney fees and impose oncial statements are outside the protection of all appeals regarding it are exhausted. the plaintiff, his attorney or law firm suchthe act, which specifically excludes from its That is, Guam courts are not statuto- additional sanctions “as it determinesdefinition of an issue of public interest “pri- rily authorized to order discovery to will be sufficient to deter repetition ofvate interests, such as statements directed be conducted if the requesting party such conduct and comparable conductprimarily 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 actioncommenting on or sharing information defendant’s motion to dismiss or for damages, costs and attorney feesabout 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 theunder the D.C. anti-SLAPP Act, and the the defendant’s petition activity is defendant, injured as a result of thecourt will hold an expedited hearing on not immune from liability. This stan- SLAPP suit.the motion and issue a ruling “as soon aspracticable” after the hearing. DiscoverySLAPP Stick: Fighting frivolous lawsuits against journalists 7
  8. 8. to dismiss was frivolous or brought solely uses to decide whether a claim was wrongly cies. Discovery activities are placed onto 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 conductedFlorida 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 showseparate anti-SLAPP statutes, and the containing facts on which the assertions in good cause for it. In ruling on the motionscope of protection under each is rela- those documents are based. to dismiss or strike, a Georgia court willtively narrow. Fla. Stat. § 768.295 (2011) A SLAPP defendant who prevails on the first determine whether the verification isprohibits any governmental entity from motion is entitled to recover attorney fees false. If that is the case, the judge will grantsuing “a person or entity without merit and costs. Moreover, a court may — but the motion if he also determines that theand solely because such person or entity is not required to — award the defendant statements in the verification indicate thehas exercised the right to peacefully any damages he sustained as a result of the claim was brought for an improper purposeassemble, 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 SLAPPof grievances before the various govern- law may be awarded treble damages, or defendant’s motion to dismiss or strike if itmental entities of this state, as protected three times his actual damages. finds the statements were made “in goodby 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 appealhomeowners’ association and prohibits or the right to petition government for a that decision immediately. Id. at 291. Eithersuits by individuals and business and gov- redress of grievances under the Constitu- party may ask the court to impose costsernmental 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, butgovernmental entity on matters related to an issue of public interest or concern.” Ga. no later than 45 days after final dispositionthe 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 mayute that specifically governs civil SLAPP ments made before a legislative, executive or request this imposition even if the plaintiffsuits — 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 thevate 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 claimassembly or petition. However, it does have a woman who made statements in online and an order to pay “reasonable expensesa 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 arecover attorney fees from the other side. invoke the anti-SLAPP statute in a defama- wrongful verification that the claim is not aFla. Stat. § 57.105 (2011). The state’s inter- tion claim against her because, although her SLAPP suit. However, the statute does notmediate appellate court upheld an award statements pertained to a matter of public specify how a court determines whether aof 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 Hawaiiacy to defame lawsuit. Thomas v. Patton, 939 of such. Berryhill v. Ga. Cmty. Support & Hawaii’s anti-SLAPP law protects againstSo. 2d 139 (Fla. Dist. Ct. App. 2006). More- Solutions, Inc., 638 S.E.2d 278 (Ga. 2006). claims involving “oral or written testimonyover, the federal appellate court in Florida When a plaintiff files a lawsuit against submitted or provided to a governmentalhas 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-1the latter brought uninvestigated, frivolous of free speech or petition in connection (2011). Although this scope of protectionclaims based on protected speech. World- with an issue of public interest or concern, is narrower than that provided under otherwide 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 governmentaldefendant can file a motion to dispose of existing law or a good-faith argument for a body may file a motion to dismiss or strikethe 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 to768.295(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 themotion to dispose of the claim will halt dis- If the plaintiff submits the required veri- lower court to make its decision, althoughcovery 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 onlyin 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 is8 The Reporters Committee for Freedom of the Press
  9. 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 whichon 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 in634F-2. That is, Hawaii courts are not it, although the judge may order discovery furtherance of the constitutional rightsstatutorily authorized to order discovery to be conducted, assuming the request- of free speech or petition, the court willto 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 thethe 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 swornspecificity.” In ruling on the motion to show by clear and convincing evidence that statements containing facts on which thedismiss 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 onthe motion unless the plaintiff can show that or participation in government and thus the motion to dismiss, he is entitled toit 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 paying this determination, a Hawaii court will will consider in making this determination. the plaintiff’s costs and attorney fees if theconsider the plaintiff’s complaint and the If the court denies the motion to dis- court finds that the motion to dismiss wasSLAPP defendant’s motion to dismiss or miss or strike, the defendant is entitled to frivolous or brought solely to delay thestrike. 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 Iowadirected to intervene to defend or otherwise fees on the other party. Stat. 110/25. There is no statute or cases in Iowasupport the defendant in the suit. addressing SLAPP suits. If the court denies the motion to dismiss Indianaor strike, the defendant is entitled to appeal To challenge a lawsuit as a SLAPP suit Kansasthat decision immediately. However, if he in Indiana, a defendant must show that There is no statute or cases in Kansasprevails, 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 orhim to pay the successful defendant actual free speech under the Constitution of the Kentuckydamages or $5,000, whichever is greater. United States or the Constitution of the There is no statute or cases in KentuckyMoreover, 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). Hetional sanctions upon the [plaintiff], its must also show that the action was “taken Louisianaattorneys, or law firms as the court deter- in good faith and with a reasonable basis in To challenge a lawsuit as a SLAPP suit inmines shall be sufficient to deter repetition law and fact.” Moreover, the action must Louisiana, a defendant must show that theof the conduct and comparable conduct by be “lawful,” meaning that speech consti- cause of action arose from “any act of thatothers similarly situated.” In addition, a pri- tuting defamation, extortion or any other person in furtherance of the person’s rightvate cause of action for damages, costs and unlawful act will fall outside the protection of petition or free speech under the Unitedattorney 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 inIdaho 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 madeaddressing 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 afrom civil liability “[a]cts in furtherance v. Schurz Commc’ns, Inc., 847 N.E.2d 219 place open to the public or a public forumof 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 furtherancein government . . . regardless of intent and legality of pharmaceuticals, CanaRx of the exercise of free-speech or petitionor 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 allowsment action, result, or outcome.” 735 Ill. LEXIS 42236 (S.D. Ind. May 29, 2008). a defendant to file a motion to strike theComp. Stat. 110/15 (2011). The statute The Indiana anti-SLAPP law allows a complaint, which the court will hear withindoes 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 fromdefendants the ability to move to dismiss decide within 180 days. Ind. Code § 34-7- the time the motion is filed until the courtor strike claims that infringe the exercise of 7-9. Discovery activities irrelevant to the has ruled on it, although the judge may orderthese constitutional rights. The court will motion are placed on hold once it is filed. discovery to be conducted if the requestinghear and decide the motion within 90 days. § 34-7-7-6. Under the statute, the defen- party provides notice of its request to theStat. 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 theSLAPP Stick: Fighting frivolous lawsuits against journalists 9
  10. 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 underof 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 rightunless 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, executiveon the claim. La. Code Civ. Proc. Ann. art. defendants from claims based on their or judicial proceeding; statements made in971. 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; statementsSLAPP 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 aboutthe defendant is entitled to recover costs Amendment of the U.S. Constitution or such governmental consideration; and anyand 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 toclaims 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 accountincludes 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 publicor 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 lawreasonably 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 willstatements 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 holdstatements protected by the constitutional suits were brought in bad faith precluded from the time the motion is filed until theright 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 requestingclaims 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 unlessto hear and decide the motion “with as The Maryland anti-SLAPP law allows a the plaintiff can show that the defendant’slittle delay as possible.” Discovery activi- defendant to move to dismiss the claim or claimed exercise of the petition right lackedties are placed on hold from the time the to place the proceeding on hold until the any reasonable factual support or arguablemotion is filed until the court has ruled matter about which he communicated to basis in law and his acts caused actual injuryon 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 theconducted if the requesting party can show A court is required to hear the motion to plaintiff’s complaint, the SLAPP defendant’sgood cause for it. The judge will grant the dismiss “as soon as practicable.” The stat- motion to dismiss and any sworn statementsmotion unless the plaintiff can show that ute does not specify whether the filing of containing facts on which the assertions inthe 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 statutesupport or arguable basis in law and his a defendant’s motion to place the proceed- includes a provision allowing the stateacts caused actual injury to the plaintiff. In ing on hold until the commented-on mat- attorney general, on his own behalf or onmaking this determination, a Maine court ter is resolved would extend to discovery behalf of any governmental body to whichwill 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 supportand 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 inments are based. Maine’s anti-SLAPP stat- Maryland’s anti-SLAPP law is one of federal court in Massachusetts may notute includes a provision allowing the state only a handful to not address costs and be able to rely on the anti-SLAPP statuteattorney general, on his own behalf or on attorney fees. because the federal court there has heldbehalf of any governmental body to which that the measure is a procedural rule thatthe SLAPP defendant’s acts were directed, Massachusetts is inapplicable in federal court. Stubornto intervene to defend or otherwise support T challenge a lawsuit as a SLAPP suit in o Ltd. P’ship v. Bernstein, 245 F. Supp. 2dthe 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. 11. If the court denies the motion, the Stat. § 554.04. Moreover, it will award dant’s motion to dismiss, it will imposedefendant 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 withN.E.2d 1030 (Mass. 2004). However, if it claim “for the purpose of harassment, to certain filing deadlines. Conversely, thegrants the motion, the court will impose inhibit the [defendant’s] public partici- court will award costs and attorney feescosts and attorney fees on the other party. pation, to interfere with [his] exercise of to the plaintiff if it finds that the motionMass. 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 isMichigan 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, Mississippiwhich provides a remedy for SLAPP defen- There is no statute or cases in Missis- Montanadants. However, as of press time, it did not sippi addressing SLAPP suits. There is no statute or cases in Montanaappear 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 NebraskaMinnesota 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 involvingimmunizes 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 actionor 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’sspeech constitutes a tort or a violation of a or any political subdivision of the state.” action for damages “materially relatedperson’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, orspeech 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 hasvide immunity to statements “intentionally county, city, town or village councils, applied for or obtained a permit, zoningaimed at audiences having no connection with planning commissions or review boards. change, lease, license, certificate, or otherthe public . . . controversy.” Freeman v. Swift, The state’s intermediate appellate court entitlement for use or permission to act776 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 affiliationdefendant who is the subject of a claim tory or injunctive relief, which seek, with such person that is materially relatedthat “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 specificmotion 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 andmotion is filed until not only the trial A defendant sued for damages based on participation filed under existing proceduralcourt has ruled on it but until all appeals his acts in connection with such a public rules must expedite and grant preference inregarding 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-SLAPPif 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 theunless the plaintiff can show by clear and on the motion in an expedited fashion, motion unless the plaintiff can show thatconvincing evidence that the defendant’s either party is entitled to seek expedited the claim has a substantial basis in law or isacts are not immune from liability. The stat- review in the appellate court, although the supported by a substantial argument for aute does not specify what evidence the court statute does not define “expedited.” modification of existing law. The plaintiffwill 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 wasa 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 isacts 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 makingmiss 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 — orderN.W.2d 746 (Minn. 1998). However, if standard a court will use to decide these the plaintiff to pay the prevailing SLAPPit 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 canSLAPP Stick: Fighting frivolous lawsuits against journalists 11
  12. 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’sing, 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 andpetition 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 “materiallyRev. Stat. § 41.650 (2010). Under the stat- suffer a special grievance. Courts have held related to any efforts of the defendant toute, a good faith communication in further- that the malice element is met by a showing report on, comment on, rule on, challengeance 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 hasthose aimed at procuring governmental or tion, or to stop the defendant from further applied for or obtained a permit, zoningelectoral action; those informing or com- exercise of these rights, or both. Further, a change, lease, license, certificate or otherplaining to a federal, state or local legisla- special grievance has been defined as inter- entitlement for use or permission to acttor or employee about a matter reasonably ference with a liberty interest, which may from any government body, or any personof concern to the respective governmental include suppression of public debate. with an interest, connection or affiliationentity; and statements made in direct con- with such person that is materially relatednection 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 definitionsdefendants the ability to file a motion to against a person for conduct or speech narrowly. For example, it reversed a trialdismiss claims infringing the good faith undertaken or made in connection with court’s finding that a defendant could availexercise 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 theon the motion within 30 days of its filing. or decision-making body of any political press about the plaintiff’s alleged misuseNevada’s anti-SLAPP statute is one of only subdivision of the state.” N.M. Stat. Ann. § of funds were “not materially related toa 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, commentcovery activities from the time the motion judicial proceeding includes any meeting on, challenge, or oppose an application byis filed until not only the trial court has held by a state or local governmental entity, the plaintiff for a permit, license, or otherruled on it, but until all appeals regarding including meetings of or presentations authorization from a public body.” Longit are exhausted. That is, Nevada courts before state, city, town or village councils, Island Ass’n for AIDS Care v. Greene, 702are 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’sparty 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 withindard a court will use to decide these under the New Mexico anti-SLAPP stat- the ambit of an applicant or permittee” asmotions or what evidence it will consider ute. The court will consider the motion defined in the statute. Hariri v. Amper, 854in 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 adefend 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 hearingcosts 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 lawcessful defendant to file a SLAPPback suit ceedings. The statute does not specify is one of only a handful to not address theagainst the plaintiff to recover actual and what standard a court will use to decide effect of a SLAPP defendant’s motion topunitive 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 showNew 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 argumentHampshire 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 clearNew 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 knowledgeJersey. Moreover, the state’s intermediate to dismiss was frivolous or brought solely of or reckless disregard for its falsity if12 The Reporters Committee for Freedom of the Press

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