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Anti-SLAPP Statutes and Commentary

Anti-SLAPP laws are designed to provide for early dismissal of meritless lawsuits filed against people for the exercise of First Amendment rights. The acronym “SLAPP” stands for “Strategic Lawsuit Against Public Participation – a phrase coined by two law school professors in the late 1980s. They identified a trend of retaliatory lawsuits brought to intimidate and silence opponents or critics who had spoken out in the public sphere, typically on land use and development issues. The actual resolution of the plaintiff’s claims – for defamation, tortious interference or related theories – was a secondary motivation at best. Anti-SLAPP statutes were proposed to provide a quick, effective and inexpensive mechanism to combat such suits. Anti-SLAPP laws enable those who are the subject of a SLAPP suit to seek early dismissal and oftentimes get their legal fees reimbursed.  The fact an anti-SLAPP law is on the books in a jurisdiction can also help to deter potential litigants from filing retaliatory lawsuits in the first place.

As of June 2014, 28 states, the District of Columbia and Guam have anti-SLAPP statutes: Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Tennessee, Utah, Vermont, Washington (N.B. Wash. statute declared unconstitutional in 2015), District of Columbia and Guam.

The scope of these anti-SLAPP statutes varies greatly. Some statues are narrowly written to apply only to actions brought by public applicants against people who have challenged or opposed such applications to government bodies. Other statutes are written to apply to speech seeking to influence decisions by the legislature or executive branch – and can be narrowly or broadly construed by the courts based on legislative histories and doctrines of statutory interpretation. The broadest scope of protection to date has been provided by statutes in states such as California which protect not only traditional petitioning activity but speech made in connection with issues of public concern. A few other states have closely followed the California model, including Indiana, Louisiana, Oregon, Washington, and most recently Oklahoma.


Anti-SLAPP Statutes, Legislation and Case Law

 

American Legislative Exchange Council Anti-SLAPP Model Legislation

Public Participation Protection Act

The model act draws upon statutes that are already on the books, including those enacted in California, Oregon, Texas and Washington. Would allow special motions to dismiss against lawsuits brought in response to a defendants exercising their rights to free speech, petition, or association, including communicating in a public form about a matter of public concern related to health, safety, environmental, economic or community well-being, the government, a public official or public figure or a good, product or service in the marketplace.

The party seeking dismissal would have to show that the lawsuit is based upon their constitutional rights under a preponderance of evidence standard. The party prosecuting the motion would have to show "with particularity the circumstances giving rise to the claim" and would have to show by the preponderance of the evidence the probability of prevailing on the merits in order to survive a special motion to dismiss their lawsuit.

The model act would authorize judges to award costs and attorney fees to prevailing parties or against parties whose special motions to dismiss are frivolous.

 

United States Federal Law - None

Proposed Federal Legislation:

2015

The SPEAK FREE Act of 2015 (H.R. 2304) was introduced in Congress on May 13, 2015. It would provide a mechanism for the quick dismissal of Strategic Lawsuits Against Public Participation pending in federal court. The bipartisan bill was introduced by Blake Farenthold (R-TX) and Anna Eshoo (D-CA)

Earlier Anti-SLAPP Efforts

Public Participation Project support materials

List of supporting organizations

The Citizen Participation Act H.R. 4364 was introduced on December 16, 2009, and was referred to the Subcommittee on Courts and Competition Policy on April 16, 2010.

Free Press Act of 2012 (S.3493)(Not supported by Public Participation Project)

Federal Anti-SLAPP Legislation: Protecting Attorneys who Take on Tough Cases, and Preventing Forum Shopping

 

Alabama - None

 

Alaska - None

 

Arizona - Ariz. Rev. Stat. Ann. §§ 12-751, 12-752

The Arizona statute applies to statements “made as part of an initiative, referendum or recall effort or that is all of the following (a) Made before or submitted to a legislative or executive body or any other governmental proceeding.  (b) Made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding.  (c) Made for the purpose of influencing a governmental action, decision or result.”

Significant Cases

Tennenbaum v. Arizona City Sanitary Dist., 799 F. Supp. 2d 1083(D. Ariz. 2011) (analyzing statute and holding that statements allegedly in violation of state election law were outside scope of anti-SLAPP statute’s protections).

 

Arkansas - Ark. Code Ann. §§ 16-63-501 – 16-63-508

Arkansas’s Anti-SLAPP Statute is the Citizen Participation in Government Act.  The statute precludes liability for any “privileged communication,” defined by the Act as “a communication made in, to, or about an issue of public concern related to any legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments . . . by a fair and true report of any legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments. . . .”  The statute also includes a constitutional limitation that the immunity will not apply to a “statement or report made with knowledge that it was false or with reckless disregard of whether it was false.”

Significant Cases

None reported

 

California - Cal. Civ. Proc. §§ 425.16, 425.17 and 425.18

Any cause of action that arises out of an act of free speech on a public issue is subject to a special motion to strike under Cal. Civ. Proc. Code § 425.16.  Section 425.16(b) provides a procedural remedy to dismiss at an early stage such nonmeritorious actions by making “[a] cause of action against a person arising from any act of that person in furtherance of the person’s [constitutional] right of. . . free speech . . . in connection with a public issue . . . subject to a special motion to strike,” unless the person asserting the cause of action establishes by pleading and affidavit a “probability” of prevailing in the action.  The defendant must demonstrate that this provision is applicable by making a prima facie showing that the plaintiff’s suit arises out of an act of free speech on a public issue.

Significant Cases

There is a significant amount of case law interpreting the California anti-SLAPP statute.  The statute is also discussed in detail in MLRC's 50-State Surveys of Media Libel Law and Media Privacy and Related Law.

Commercial Exception to the Statute:

Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12, 230 P.3d 1117, 109 Cal. Rptr. 3d 329 (2010) (California Supreme Court affirmed that the commercial speech exception to the anti-SLAPP statute, 425.17, is narrow in scope).

Metcalf v. U-Haul International, Inc., 118 Cal. App. 4th 1261 (2004) (under Section 425.17, commercial defendants cannot invoke the protections of the anti-SLAPP statute by claiming their advertising impacted the public interest).

Scope of the Statute:

Hunter v. CBS Broadcasting, Inc., No. B244832 (Cal. App. Dec. 11, 2013) California's anti-SLAPP statute applied to employment discrimination claims brought by a candidate for an on-air position against a television station. The Court of Appeal reiterated that the anti-SLAPP statute could be applied to any claim and that the proper analysis under the anti-SLAPP statute requires a court to disregard the defendant's alleged motivations or intent and to make a factual determination as to whether the defendant's conduct at issue was an act in furtherance of a First Amendment right.

Hupp v. Freedom Commc'ns, Inc., 221 Cal. App. 4th 398, 163 Cal. Rptr. 3d 919 (2013) Affirmed the striking, under the state's anti-SLAPP statute, of a lawsuit against the Orange County Register that arose from a back-and-forth between two readers who posted comments to a Register article.

Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 142-45 (2011) (creation of popular television show, CSI: Crime Scene Investigation, concerned a matter of public interest.  “The creation of a television show is an exercise of free speech,” and “the creation and broadcasting of [the] CSI episode ... is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode.”).

Beckham v. Bauer Publishing Company, L.P., et al., 10-cv-07980 (C.D.Cal. 2011) (conduct of international soccer star David Beckham – even if taking place in the supposed privacy of a bedroom – is of public interest for the purposes of the anti-SLAPP statute).

Wong v. Jing, 189 Cal. App. 4th 1354, 1366-67 (Cal. App. 2010) (Yelp posting critical of dentist a matter of public interest).

Rivera v. First DataBank, Inc., 187 Cal.App.4th 709, 115 Cal.Rptr.3d 1 (Cal. App. 2010) (dismissing negligence and wrongful death claims against a medical data publisher).

Yan v. Sing Tao Newspapers San Francisco Ltd. et al., No. A120311, 2008 WL 4359534 (Cal. App. Sept. 25, 2008) (granting a newspaper’s motion to strike a complaint for assault, finding that a plaintiff cannot frustrate the purposes of the anti-SLAPP statute by simply pleading an illegal act).

Tendler v. Jewishsurvivors.blogspot.com, No. H031130, 2008 WL 2352497 (Cal. App. June 10, 2008) (anti-SLAPP statute does not apply to a motion to quash a subpoena seeking the identity of an anonymous Internet poster because a subpoena is not “a complaint-like pleading stating causes of action”)

Flatley v. Mauro, 39 Cal. 4th 299 (Cal. 2006) (anti-SLAPP statute does not apply when defendant’s underlying conduct is illegal since such conduct is not protected by the constitutional guarantees of free speech or petition).

Ingels v. Westwood One Broadcasting Services, Inc ., 129 Cal. App. 4th 1050 (2005) (concluding that defendant’s activity in providing an open forum through its call-in radio talk show fit within the scope of the statute).

Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 27 Cal. Rptr. 3d 863 (2003) (Yahoo! message board a “public forum” within the scope of the state anti-SLAPP statute).

Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 519, 52 P.3d 685, 694 (2002) (defendant need not show that plaintiff's suit was brought with the intention to chill defendant's speech; the plaintiff's “intentions are ultimately beside the point”).

Burden of Proof and Procedure:

Batzel v. Smith., 333 F.3d 1018 (9th Cir. 2003) (party in federal court is entitled to an interlocutory appeal of a denial of an anti-SLAPP motion;  statute creates “substantive immunity from suit”).

United States v. Lockheed Missiles & Space Company, Inc., 190 F.3d 963, 972 (9th Cir. 1999) (anti-SLAPP statute is applicable in federal court).

Public Interest Prong Analyzed:

McGarry v. University of San Diego, 2007 WL 2040578 (Cal. App. July 17, 2007) (statements about termination of a football coach involved matter of public interest).

M.G. v. Time Warner, 89 Cal. App. 4th 623 (2001) (noting “courts have approved the use of the anti-SLAPP statute by media defendants” and applying it to plaintiff’s claims against magazine for misappropriation of identity, public disclosure of private facts, intrusion and false light).

Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 102 Cal. Rptr. 2d 205 (2000) (statements concerning management of a private homeowners association concerned “issues of public interest”).

Marich v. QRZ Media, Inc., 86 Cal. Rptr. 2d 406 (1999) (applying statute to plaintiff’s claims against media defendants arising from televised report of the death of plaintiff’s son due to suspected drug overdose).

Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal App. 4th 855 (1995) (media defendant can carry its initial burden by showing the libel suit was “based on its news reporting activities” concerning a public issue).

Recent Cases Finding No Public Interest:

Doe v. Gangland Prods., Inc., 802 F. Supp. 2d 1116, 1123 (2011) (revealing plaintiff’s gang nickname and face on television program was not speech in connection with a public issue or an issue of public interest).

Whitaker v. A & E Television Networks et al., No. G040880, 2009 WL 1383617 (Cal. App. May 18, 2009) (depiction of plaintiff in television documentary as HIV/AIDS sufferer does not concern matter of public interest).

Joyner v. www.socalsoccertalk.com et al., No. G037181, 2007 WL 1697486 (Cal. App. June 13, 2007) (web postings criticizing a high school soccer coach of interest to small group of players and family, no public interest).

Dyer v. Childress, 147 Cal.App.4th 1273, 55 Cal.Rptr.3d 544 (Cal. App. Feb. 26, 2007) (although movie as a whole addressed topics of public interest, alleged representation of plaintiff as a rebellious slacker is not a matter of public interest and there is no discernable public interest in plaintiff’s persona).

Whitney v. Playboy Entertainment Group, Inc., No. B182230, 2006 WL 1494005 (Cal. App. June 1, 2006) (unpublished) (distribution of Playboy Mansion party videos does not concern a matter of public interest).

Santini v. American Media, Inc. et al., No. B174471, 2005 WL 459195 (Cal. App. Feb. 28, 2005) (tabloid article on alleged tryst between actor and lap dancer not a matter of public interest; “not all speech about a celebrity is necessarily a public issue or an issue of public interest”).

Padilla v. MRA Holding, No. B172540, 2004 WL 2988172 (Cal. App. Dec. 28, 2004) (Girls Gone Wild  DVD series; women “flashing” does not concern a public issue).

Recent Cases Finding Plaintiff Met Burden to Survive Motion:

Dice v. X17, Inc., No. B243910 (Cal. App. Jan. 10, 2014) (unpublished) Affirmed the denial of an anti-SLAPP motion made by celebrity website X17 seeking to strike defamation and privacy claims over videotaping Lindsey Lohan and plaintiff, Lohan's sobriety coach. The court held there was sufficient evidence to show that the video falsely suggested the parties engaged in a drug transaction to withstand a motion to strike.

Budget Van Lines v. Better Business Bureau of Southland, No. B235338 (Cal. App. Aug. 20, 2013)(unpublished) Affirmed that a moving broker given an online "F" grade by a local Better Business Bureau demonstrated a probability of success on libel and related claims sufficient to survive an anti-SLAPP motion to strike

Price v. Stossel, No. 09-55087, 2010 U.S. App. LEXIS 17671 (9th Cir. Aug. 24, 2010) (plaintiff established sufficient proof of falsity based on use of an out-of-context video clip. “[T]he video quotation of Price’s statement materially changed the meaning of Price’s words.”)

Fees:

Keene v. Lake Publ’g Co., Inc., 2010 Cal. App. Unpub. LEXIS 1930 (March 18, 2010) (affirming fee award  based on rates of experienced, out-of-town media attorneys without reference to prevailing hourly rate of local attorneys).

Foundation for Taxpayer and Consumer Rights. v. Garamendi, 132 Cal. App. 4th 1375, 34 Cal. Rptr. 3d 368 (2005) (plaintiff entitled to recovery attorneys fees when anti-SLAPP motion was frivolous).

United States v. Lockheed Missiles & Space Company, Inc., 190 F.3d 963, 971 (9th Cir. 1999) (prevailing defendant entitled to attorney’s fees).

 

Colorado - None

 

Connecticut - SB 981

Proposed January 2017, and referred to the Committee on the Judiciary. 

 

Delaware - Del. Code Ann. Tit. §§ 8136 - 8138

The statute applies to claims brought by a “public applicant or permittee” that are “materially related to any efforts of the defendant to report on, rule on, challenge or oppose such application or permission.” A public applicants or permitee is someone who “has applied to obtain for or obtained a permit, zoning changes, lease, license or other entitlement for use or permission to act from any government body, or any person with an interest, connection, or affiliation with such person.”

Significant Cases

None reported

 

District of Columbia - DC ST § 16-5501 - 5505 [see also PDF file]

The D.C. Anti-SLAPP Act of 2010 applies to suits based on written or oral statements regarding (1) an issue being considered by a governmental body; (2) governmental or official proceedings; or (3) issues of public interest made in a public forum. It also applies to suits concerning any expressive conduct involving petitioning the government or communicating with the public regarding issues of public interest. Certain commercial statements are specifically outside the protections of the Act.

Significant Cases

John Doe No. 1 v. Burke, No. 13-CV-83 (D.C. App. May 29, 2014). In its first decision to interpret the District of Columbia's Anti-SLAPP law, the D.C. Court of Appeals quashed a subpoena to an anonymous Wikipedia user sued for defamation.  The D.C. statute goes further than other jurisdictions in protecting anonymous speech by affording anonymous defendants the ability to file special motions to quash subpoenas for their identities. The Court first held that it had jurisdiction to hear an appeal from the trial court's denial of the motion.  On the merits of the motion, the Court held that plaintiff, an attorney, was a public figure who failed to show that edits to her Wikipedia page were made with actual malice.

Mann v. National Review, No. 2012 CA 8263 B (D.C. Sup. Jan. 22, 2014). Denied a motion to strike the complaint under the District's anti-SLAPP statute, finding that reasonable readers could find plaintiff was accused of engaging in fraudulent research which "can be proven true or false."

Boley v. Atlantic Monthly Group, 950 F. Supp. 2d 249 (D.D.C. June 25, 2013)(the first D.C. federal court decision dismissing a libel suit based solely on the D.C. anti-SLAPP act)

 

Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. June 4, 2012) Dismissing libel, privacy and related claims brought over a satirical Esquire magazine blog post poking fun at a birther conspiracy book).  The blog post was clearly speech on a matter of public interest and was protected by the anti-SLAPP statute and federal motion to dismiss standards.

 

Sherrod v. Breitbart, 843 F. Supp. 2d 83 (D.D.C. 2012) (refusing to apply anti-SLAPP statute retroactively).

Lehan v. Fox Television Stations, Inc. and Roby Chavez, Case No. 2011 CA 004592 B (D.C. Super. Ct. November 30, 2011) Dismissing libel claims against broadcaster, finding plaintiff failed to show a "likelihood of success" in his claim over news report that he earned extreme amounts of overtime.

Application in Federal Court

In April 2015, the D.C. Circuit Court of Appeals held that the statute does not apply in federal court. Abbas v. Foreign Policy Group, LLC, et al., No. 13-7171 (D.C. Cir. Apr. 24, 2015).Specifically, the Court found that a federal court exercising diversity jurisdiction may not apply the D.C. Anti-SLAPP Act's special motion to dismiss provision because it conflicts with the pre-trial judgment standards under Federal Rules of Civil Procedure 12 and 56. Relying on the Supreme Court's holding in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), the Court explained that a federal court sitting in diversity should not apply a state law if two prongs are met: (1) a Federal Rule of Civil Procedure "answers the same question" as the state law, and (2) the Federal Rule does not violate the Rules Enabling Act.

 

(prior split of authority):

Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. June 4, 2012) (anti-SLAPP statute applies in federal court); Sherrod v. Breitbart, 843 F. Supp. 2d 83 (D.D.C. 2012) (anti-SLAPP statute is substantive); Abbas v. Foreign Policy Magazine, et al., 1:12-cv-01565 (D.D.C. Sept. 27, 2013); Forras v. Rauf, No. 12-00282 (BJR) (D.D.C. April 18, 2014)(reasoning that the weight of authority since 3M indicates that anti-SLAPP is applicable in federal court); but see 3M Co. v. Boulter, No. 11-1527, 2012 WL 386488 (D.D.C. Feb. 2, 2012) (anti-SLAPP does not apply in federal court because it restricts the procedural right to maintain an action in federal court).

 

Florida -

2015 Legislation:

SB 1312

Florida Governor Signs One Bill Protecting Free Speech... And Another That Undermines It
Techdirt
Getting the anti-SLAPP bill is really important, but losing anonymity online for distribution of audiovisual works seems really dangerous. These aren't just the sort of things that "balance out."

SB 604


Fla. Stat. §§ 720.304(4); 768.295

§ 768.296 applies to suits filed by government entities arising out of a party’s right to “peacefully assemble, instruct representatives, or petition for redress of grievances.” § 720.304(4) protects the right of parcel owners to exercise those same rights, and applies exclusively to claims against land owners arising out of their speech about their homeowners’ associations.

2012 Legislation:

Florida HB 1367 (Died in Civil Justice Subcommittee on March 9, 2012)

Significant Cases

None reported

 

Georgia - Ga. Code Ann. § 9-11-11.1

Georgia adopted an anti-SLAPP statute that applies to any action that arises from an act that “could reasonably be construed as an act in furtherance of the right of free speech or the right to petition the government for redress of grievances . . . in connection with an issue of public interest or concern.”  In Berryhill v. Georgia Community Support & Solutions, Inc., 281 Ga. 439, 638 S.E.2d 278 (2006), the Georgia Supreme Court made clear that the scope of Georgia’s anti-SLAPP statute is limited by subsection (c), so its protections apply only to statements made in or in connection with official proceedings.  The law would appear to include print and broadcast news stories relating to issues undergoing government review.

Significant Cases

Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356, 705 S.E.2d 241 (2011). The statute was applied to a slander lawsuit filed by Georgia gun dealers against New York City Mayor Michael Bloomberg over statement he made about illegal gun trafficking.  The court rejected plaintiff’s argument that the statute applied only to Georgia citizens.  “Although the General Assembly obviously intended to protect Georgia citizens in enacting the statute, nothing in OCGA § 9-11-11.1 limits the scope of the statute only to citizens of Georgia.” (MLRC coverage of lower court decision)

Hindu Temple & Cmty. Ctr. of the High Desert, Inc. v. Raghunathan, 311 Ga. App. 109 (Ga. Ct. App. 2011) The court held that because the temple's and founder's claims were predicated upon the individuals' statements to police or in furtherance of the investigation, such speech was in furtherance of the right to petition government for a redress of grievances and thus represented the type of speech that the anti-SLAPP statute was designed to protect.

Boxcar Development Corp. v. New World Communications of Atlanta, Inc., 2008 WL 1943313 (Ga. Super. 2008) (investigative reports were presumptively covered by the anti-SLAPP statute. Defamation, invasion of privacy, fraudulent misrepresentation, and intentional infliction of emotional distress claims all covered since they arose out of broadcast media defendant’s communicative acts. Complaint dismissed with prejudice for plaintiff’s failure to comply with verification requirements.)

Berryhill v. Georgia Community Support and Solutions,  281 Ga. 439 (Ga. Nov. 28, 2006) (confirming the opinion of the concurring judge in Davis, holding Georgia’s anti-SLAPP applies only to speech made in the course of or leading to an official proceeding).

Harkins v. Atlanta Humane Society, 273 Ga. App. 489 (Ga. App. 2005) (television interview of animal rights activists protected under the anti-SLAPP statute where interviewee made statements in good faith, believing that her efforts could influence or persuade government officials and the public at large to help change problems at the Atlanta Humane Society).

Davis v. Emmis Publishing, 536 S.E.2d 809 (Ga. Ct. App. 2000) (court did not reach the question of whether the anti-SLAPP statute applied when libel claim against Atlanta Magazine was dismissed for improper verification, but a concurring judge proposed that the statute did not apply because the article in question concerned a local murder, neither dealing with a petition in the public interest nor urging legislative change.)


Application in Federal Court:

The Eleventh Circuit held that the Georgia anti-SLAPP statute does not apply in federal court because the verification requirement in the statute conflicts with Federal Rule of Civil Procedure 11. Royalty Network v. Harris, No. 13-12460 (11th Cir. July 10, 2014). Section 9-11-11.1(b) of the statute requires that in any claim relating to an act that could be construed as having been done in furtherance of the right of free speech or the right to petition the government, the plaintiff and plaintiff’s counsel must file a written verification certifying that the claim is well grounded in fact, is warranted under existing law, and that the claim is not made for an improper purpose. The Court held this state law requirement conflicted with FRCP 11 which explicitly provides that a pleading need not be verified or accompanied by an affidavit and allows parties discretion in deciding whether to verify pleadings. 

In 2017, a Georgia federal district court denied a motion by CNN to strike a defamation complaint under the state’s anti-SLAPP statute, holding that the Georgia statute directly conflicted with Federal Rule 12(b)(6) and thus could not be raised in a diversity action in federal court. See Carbone v. Cable News Network, 1:16-CV-1720 (N.D. Ga. Feb. 14, 2017). The conflict, the court explained, arises because Federal Rule 12(b)(6) requires “plausibility” on the face of the complaint, while the state anti-SLAPP law, Section 9-11-11.1(b)(1), requires a “probability of prevailing.” By its very definition, therefore, the federal plausibility requirement “not only conflicts, but also cannot coexist” with the Georgia anti-SLAPP probability requirement.


Guam - Guam Code Ann. tit. 7 § 17101 - 17109

The Citizen Participation in Government Act provides for an expedited motion for summary judgment and a stay of discovery in cases “in furtherance of the Constitutional rights to petition, including seeking relief, influencing action, informing, communicating and otherwise participating in the processes of government.”

Significant Cases

Guam Greyhound Inc. v. Brizill, 2008 Guam 13 (2008) (upholding the constitutionality of the territory’s anti-SLAPP statute, and holding it applied to claims for defamation, tortious interference with prospective business advantage and false light for statements made to the news media opposing a slot machine initiative).

 

Hawaii - Haw. Rev. Stat. §§ 634F

Hawaii’s Anti-SLAPP statute is designed to protect public participation before governmental bodies. The statute provides for a motion for judgment on the pleadings, a discovery freeze, recovery of attorney fees and actual damages.

Significant Cases

None reported

 

Idaho - None

 

Illinois - 735 Ill. Comp. Stat. 110/1 et seq.

The Citizen’s Participation Act is intended to protect individuals who speak out on matters of public concern, commonly referred to as an “anti-SLAPP” statute.  The Act provides: that a hearing and decision on a motion under the Act must occur within 90 days after filing; for an expedited appeal from a trial court order that denies an anti-SLAPP motion; and a moving party who prevails under the Act to receive all reasonable attorneys’ fees and costs incurred in connection with the dispositive motion.

Significant Cases

 

Sandholm v. Kuecker, 962 N.E.2d 418 (2012)(significantly narrowing the application of the state's anti-SLAPP statute and holding that the anti-SLAPP statute applies only to claims "solely based on" protected speech and with no other basis than to chill speech--meaning the lawsuit does not seek genuine relief or defamatio or other tortious acts)

Application in Federal Court:

Trudeau v. ConsumerAffairs.com, 10‑cv‑7193, 2011 WL 3898041 (N.D. Ill. Sept. 6, 2011) (holding anti-SLAPP statute applies in federal court because the protections provided by the statute were substantive defenses to actions affecting free speech, but denying motion on the merits).  The court ruled that the statute did not bar a libel suit against a consumer website which allegedly misstated the results of a false advertising case.  Applying the statute to this case would stretch the CPA beyond its intended purpose, because “it is disingenuous to claim that defendants were attempting to influence government action or gain public support by authoring and publishing a purely informative report on an appellate court decision.”

Indiana - Ind. Code §§ 34-7-7-1 et seq.

The Indiana anti-SLAPP statute is designed to protect acts “in furtherance of a person's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue.”    It provides for early dismissal, a discovery freeze and recovery of attorney fees, but the defendant can recover attorney fees only if the anti-SLAPP statute was the primary grounds for summary judgment upon which the defendant prevailed.

Significant Cases

Nexus Group, Inc. v. Heritage Appraisal Service, 2011 Ind. App. LEXIS 160 (Ind. App. 2011) (affirming dismissal of a libel claim between competing real estate appraisers).  At issues were statements defendant allegedly as a source for a critical newspaper article about plaintiff’s property tax appraisals.  The parties did not dispute that defendant’s statements about property tax assessments involved a matter of public concern and the court affirmed that plaintiff lacked evidence to show that the statements were made in bad faith or with knowledge of falsity.

CanaRx Servs. V. LIN TV Corp., 2008 U.S. Dis. LEXIS 42236 (S.D. Ind. 2008) (dismissing suit on the grounds that defendants’ investigative report on the safety and legality of pharmaceuticals was made in furtherance of their right to free speech in connection with a matter of public interest, the statements were made in good faith, and the statements were lawful).

Hamilton v. Prewitt, 860 N.E.2d 1234 (Ind. App. 2007) (holding anti-SLAPP statute does not apply to libel complaint over a website parody of plaintiff’s water conditioning business because the fact that website was entertaining did not render it a matter of public interest).

Shepard v. Schurz Communication, 847 N.E.2d. 219 (Ind. App. 2006) (dismissing defamation claim against newspaper where subject was one of public interest and paper proved it acted without actual malice).

Poulard v. Lauth, 793 N.E.2d 1120 (Ind. Ct. App. 2003) (affirming summary judgment under anti-SLAPP statute in favor of newspaper sued for libel for two articles criticizing the actions of a town council).

Application in Federal Court

Containment Tech. Group v. American Soc’y of Health Sys. Pharmacists, 2009 WL 838549, at *8 (S.D. Ind. Mar. 26, 2009) (anti-SLAPP statute is substantive Indiana law that governs in a diversity action).

 

Iowa - None

 

Kansas - HB 2711

Status: Died in committee May 30, 2014

 

Kentucky - None

 

Louisiana - La. Code Civ. Proc. Ann. Art. 971

The Louisiana anti-SLAPP statute created a “special motion to strike” causes of action arising from “any act of that person in furtherance of that person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue.”  Like the California anti-SLAPP law, this legislation requires a plaintiff to demonstrate “a probability of success on his claims” in response to a defendant’s filing of a special motion to strike. Other provisions of the anti-SLAPP law allow prevailing defendants to recover their attorneys’ fees and costs.

Significant Cases

Louisiana Crisis Assistance v. Marzano-Lesnevich, 827 F. Supp. 2d 668 (E.D. La. 2011), reconsideration granted in part, 878 F. Supp. 2d 662 (E.D. La., July 9, 2012).   The court denied an anti-SLAPP motion to strike breach of fiduciary duty and contract claims against an author. In a suit by a legal clinic against a law school intern turned author, the court found sufficient evidence that a published literary essays and a planned book by defendant exploring death penalty issues would reveal privileged attorney-client information.  On a procedural point, the court held that the statute can only be used to dismiss a lawsuit in its entirety and could not be used to strike individual causes of action.  On motion for reconsideration, the court reversed itself on this point, reasoning that in light of the plain language of the statute it had made a manifest error of law.  Id. No. 11-2102 (E.D. La. July 9, 2012).

Armington v. Fink, et al., No. 09-6785, 38 Media L. Rep. (BNA) 1515, (E.D. La. Feb. 24, 2010) (dismissing doctor’s libel case against Pro Publica and The New York Times over an article about life and death choices made by hospital staff in the face of Hurricane Katrina; article involved a matter of public interest notwithstanding passage of time).

Henry v. Lake Charles American Press LLC, No. 08-30201, 2009 WL 989190 (5th Cir. April 14, 2009) (on interlocutory appeal granting motion to strike libel complaint against a newspaper, holding that the plaintiff failed to provide evidence of fault to withstand a motion to strike;   denial of a motion to strike is immediately appealable).

Thompson v. Emmis Television Broadcasting, 894 So.2d 480 (La. App. 2005) (granting motion to strike the complaint of public figure against a television station for its news broadcast about  court case in which plaintiff was involved).

Johnson v. KTBS, Inc., 889 So. 2d 329 (La. App. 2004) (granting television stations’ motion to strike on the grounds that their broadcasts on plaintiff’s family—which had been involved in a grisly murder—were in furtherance of their free speech rights).

Johnson v. John Wiley & Sons Publishers, et al., No. 03-13698-D (D. La. Jan. 16, 2004)  (dismissing individual’s complaint for libel, misappropriation and related claims against a book publisher that had used a picture of plaintiff partying during Mardi Gras on the cover of Frommer’s Irreverent Guide to New Orleans. Court reasoned that plaintiff could not show a probability of prevailing on invasion of privacy claim because partying at Mardi Gras is “almost like an assumption of risk.”).

Lee v. Pennington, 830 So.2d 1037 (La. App. 2002) (affirming dismissal of claims for defamation, invasion of privacy, “racial profiling,” and the Louisiana abuse of rights doctrine, in case brought against news media by police officer charged with aggravated rape).

Stern v. Doe, 806 So.2d 98 (La. App. 2001) (first appellate decision upholding a motion to strike; declining to award attorney’s fees to television station where plaintiff was in forma pauperis and action was not an abuse of the judicial process).

Application in Federal Court

Henry v. Lake Charles American Press LLC, No. 08-30201, 2009 WL 989190 (5th Cir. April 14, 2009) (holding that statute applies in federal court); see also Armington v. Fink, et al., No. 09-6785, 38 Media L. Rep. (BNA) 1515, (E.D. La. Feb. 24, 2010)

Louisiana Crisis Assistance v. Marzano-Lesnevich, 827 F. Supp. 2d 668 (E.D. La. 2011), reconsideration granted in part, 2012 U.S. Dist. LEXIS 94248 (E.D. La., July 9, 2012).    Surveying nationwide case law on the subject, the court concluded: “It is clear that article 971 is intended to provide an additional layer of protection to individuals who have been targeted for the exercise of their constitutionally protected free speech activities, beyond that which is contemplated by a motion to dismiss pursuant to Rule 12 or a motion for summary judgment under Rule 56.”

 

Maine - Me. Rev. Stat. Ann. tit. 14, § 556

Maine’s anti-SLAPP statute provides for a special motion to dismiss based on the moving party’s exercise of the right of petition under the state and federal constitution.   The right to petition includes any statement made in connection with an issue under consideration or review by a governmental entity; any statement likely to encourage consideration or review of an issue by a governmental entity; any statement likely to enlist public participation in encouraging a government body to consider a particular issue; and any other statement falling within constitutional protection of the right to petition the government.

Significant Cases

Nader v. The Maine Democratic Party, 2012 ME 57 (Me. 2012)(Nader I) The state Supreme Court held that a plaintiff opposing an anti-SLAPP motion need only show a prima facie case to avoid dismissal.

Schelling v. Lindell, 942 A.2d 1226 (Me. 2008) (right to petition should be defined broadly; finding that plaintiff’s weak evidence of emotional distress did not satisfy his burden of production and persuasion in defamation case against representative who wrote a letter to the editor defending his vote on a government contracting bill).

Maietta Construction, Inc. v. Waitwright, 847 A.2d 1169 (Me. 2004) (affirming dismissal under the anti-SLAPP statute of defamation claims and declaring that letters to local newspapers containing statements about a land dispute were exactly “the sort of petitioning activity envisioned by the statute’).

Application in Federal Court

Godin v. Schencks, 2010 U.S. App. LEXIS 25980 (1st Cir. Dec. 22, 2010) (anti-SLAPP statute applicable in federal court).

 

Maryland - Md. Code Ann. Cts. & Jud. Proc. § 5-807

Maryland's anti-SLAPP statute protects communications with a federal, State, or local government or the public if the communications are made without constitutional malice.

2012 Legislation:

SB 221 (Did not pass)

Significant Cases

Russell v. Krowne, No. DKC 2008-2468, 2010 WL 2765268 (D. Md. July 12, 2010) (anti-SLAPP statute applicable in federal court; denying website’s anti-SLAPP motion to dismiss defamation and unfair practices claims; issues of material fact existed as to whether plaintiff’s suit was brought in bad faith, whether the online article concerned a matter within the authority of a government body, and whether the article was published with actual malice).

Ugwuonye v. Rotimi, 2010 U.S. Dist. LEXIS 77436 (D. Md. July 30, 2010) Court was unwilling to apply anti-SLAPP law during the pre-discovery stage with a limited record in front of it.

 

Massachusetts - Mass. Gen. Laws ch. 231 § 59(H)

Massachusetts enacted an anti-SLAPP statute to address abusive prosecution against parties exercising their constitutional right to petition.  Under the statute, a party who asserts that civil claims — including defamation claims — against him were based upon the exercise of his constitutional right of petition may bring a special motion to dismiss. If the motion is granted, the defendant may obtain payment of his costs and attorney’s fees.  However, the Massachusetts Supreme Judicial Court held that a reporter’s newspaper articles that were the subject of a libel action did not fall under Massachusetts’ anti-SLAPP statute.  Fustolo v. Hollander, 455 Mass. 861 (2010).

Significant Cases

Cardno Chemrisk v. Foytlin, (Mass. 2017). The Supreme Judicial Court held that the statute protected two environmentalists who wrote an opinionated article on the Huffington Post website. Distinguishing Fustolo, the court reasoned that their opinionated article was “petitioning” within the meaning of the statute. 

Town of Hanover v. New Eng. Reg'l Council of Carpenters, 467 Mass. 587 (Mass. 2014) The town alleged that in a previous lawsuit the New England Regional Council of Carpenters had engaged in abuse of process by maintaining the litigation, providing legal counsel, and controlling the plaintiffs' interests, despite not being named a plaintiff in the suit. The court held that access to the courts is a protected petitioning activity, and because the town could not show that the taxpayers' previous litigation was devoid of factual support, the motion to dismiss was granted.

Fustolo v. Hollander, 455 Mass. 861 (2010) (statute does not apply to defamation suit against reporter for articles about controversial land development because the reporter’s articles “did not contain statements seeking to redress a grievance or to petition for relief of her own.”).

Joyce v. Slager, No. 08-01240-B (Mass. Super. 2009) (trial court dismissed public official’s libel suit against publisher and writer of local newspaper for three allegedly libelous articles criticizing police officer’s job performance).

The Cadle Company v. Schlichtmann, 448 Mass. 242 (Mass. Jan. 17, 2007) (refusing to apply anti-SLAPP where court found lawyer’s critical internet comments about debt collection company were motivated by the commercial goal of attracting new clients).

Islamic Society of Boston v. Boston Herald, Inc., No. 05-4637, 2006 Mass. Super. LEXIS 391 (Super. Ct. July 20, 2006) (holding statements of non-media defendants opposing construction of mosque not “petitioning activity” as defined under the statute because statements were made to media entities, not the government).

Kobrin v. Gastfriend, 433 Mass. 327 (2005) (limiting statute’s coverage to those who petition the government on their own behalf).

MacDonald v. Paton, 57 Mass. App. Ct. 290 (2003) (granting motion to dismiss in favor of operator of a web site designed as a forum for citizens to speak out on local issues).

Salvo v. Ottoway Newspapers, 1998 Mass. Super. LEXIS 724 (May 13, 1998) (applying anti-SLAPP statute where plaintiff sued publisher of the Salem Evening News for an article alleging he had traded political favors for permission from the city to develop land).

 

Michigan - None

2011 State Legislation:

Michigan HB 5036 (Did not pass)

 

Minnesota -

2015 Legislation

Minnesota: Governor signs anti-SLAPP bill, protecting calls to police from retaliation
Pioneer Press
A dispute over a campaign sign in 2010 in rural Washington County was the impetus for a new law that will protect a person who calls the police from being sued....The new version of the law more broadly defines public participation.

HF 906

Minn. Stat. § 554

Minn. Stat. § 554 provides immunity for lawful conduct or speech genuinely aimed at procuring government action.  The statute, however, does not provide immunity from liability for defamatory statements, nor does it apply to communications that are not “genuinely aimed” at procuring favorable government action, even if those communications are made in the context of otherwise protected speech.

Significant Cases

Hoyt v. Goodman, No. 10-CV-3680, 2011 WL 6151511, at *6 (D. Minn. Dec. 12, 2011) (lobbying city council members to vote against a development project is protected by the statute).

Nexus v. Swift, 785 N.W.2d 771  (Minn. App. 2010) (upholding constitutionality of the statute, holding it does not  violate a non-moving party’s right to due process of law or to a jury trial. The plaintiff, a developer of a sex offender treatment facility, sued defendant over blog posts and YouTube video clips opposing the development and alleging that a juvenile at another facility was “killed” by Nexus staff.  In addition to rejecting a constitutional challenge to the statute, the court rejected plaintiff’s argument that the statute does not apply to speech on the Internet.  There is “nothing in the text or implication of the statute to suggest that it demarcates Internet-based speech from other forms of speech. .Internet speech is speech protected by the First Amendment.”)

Special Force Ministries v. WCCO Television, 584 N.W.2d 789 (Minn. App. 1998) (declining to apply statute to television news exposé of facilities for mentally challenged adults operated by plaintiff; though broadcast was likely covered by the statute as aimed at procuring favorable government action, evidence of tortious conduct in obtaining video footage barred relief).

 

Mississippi - None

 

Missouri - Mo. Rev. Stat. § 537.528

The Missouri statute provides for an expedited motion to dismiss and a stay of discovery in actions “seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state.”

Significant Cases

Cedar Green Land Acquisition, LLC v. Baker, 212 S.W.3d 225 (Mo. App. 2007) (denial of a motion to dismiss is not an appealable order).

Moschenross v. St. Louis County, 188 S.W.3d 13 (Mo. Ct. App. 2006) (refused to apply anti-SLAPP law, because there was no evidence the suit was brought in retaliation for opposing plaintiff's interests)

 

Montana -None

 

Nebraska - Neb. Rev. Stat. §§ 25-21,24125-21,246

The Nebraska anti-SLAPP law provides for a motion to dismiss and summary judgment in actions involving public petition and participation. See Sand Livestock Sys., Inc. v. Svoboda, 17 Neb. App. 28, 756 N.W.2d 299 (2008) (involving defendants who prevailed on anti- SLAPP claim in defense of defamation action and including general discussion of anti-SLAPP claims in Nebraska).

Significant Cases

Sand Livestock Systems, Inc. v. Svoboda, 7 Neb. App. 28, 756 N.W.2d 299 (2008) (decision includes general discussion of anti-SLAPP claims in Nebraska).

 

Nevada - Nev. Rev. Stat. §§ 41.635 - 41.670 (Updated by SB286, signed by governor May 27, 2013 and effective Oct. 1, 2013)

The Nevada anti-SLAPP statute, significantly updated and broadened in June 2013 (and effective October 1, 2013), pertains to “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood. The new law expedites the decision-making process, requiring a court to rule on an anti-SLAPP motion within seven judicial days while also allowing immediate appeal of a denied anti-SLAPP motion. The court may award a successful movant up to $10,000 in addition to costs and attorneys' fees. Previously, the Nevada anti-SLAPP statute provided immunity for communication of good faith complaints to government officials and agencies. (See "Nevada anti-SLAPP Statute Amended to Provide Broad Protection for Public and Press")

Significant Cases (Under previous anti-SLAPP statute)

Jensen v. City of Boulder City, 2014 Nev. Unpub. LEXIS 158 (Nev. 2014) Granting motion to dismiss as the amended statute makes it clear that the law provides immunity from civil actions, not just civil liability; also noting that "the changes to the anti-SLAPP statutes and the legislative history show that the Legislature intended for the anti-SLAPP statutes to cover all speech directly connected to matters of public concern."

Metabolic Research, Inc. v. Ferrell, No. 10-16209, 2012 U.S. App. LEXIS 12280, *12 (9th Cir. June, 18, 2012) (denial of a motion to dismiss is not immediately appealable in federal court). The court reasoned that the Nevada anti-SLAPP statute does not satisfy the strict collateral order doctrine governing when non-final judgments are appealable.  “In other words we have recognized that an anti-SLAPP statute’s aim of protecting its citizens’ First Amendment rights can, in some circumstances, be adequately protected without recourse to immediate appeal.” The court also declined to decide whether the statute can be used in federal court since the issue was not raised by the parties.

John v. Douglas County Sch. Dist., 219 P.3d 1276 (2009) (school district entitled to anti-SLAPP dismissal of employment discrimination claims; court states that statute is similar in purpose and scope to California law).

 

New Hampshire - None

 

New Jersey - A3505 (pending)

As of October 9, 2014, a bill to create a special motion to dismiss a "Strategic Lawsuit Against Public Participation" was passed by an Assembly committee.

 

New Mexico - N.M. Stat. §§ 38-2-9.1 - 38-2-9.2

In 2001, New Mexico enacted an anti-SLAPP statute that protects “conduct or speech undertaken or made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a tribunal or decision-making body of any political subdivision of the state,” by creating a special motion to dismiss and providing for recovery of attorney fees.

Significant Cases

Cordova v. Cline, 2013-NMCA-083 (N.M. Ct. App. 2013) The trial court erred in dismissing the school board member's action against the participants in a citizens group for malicious prosecution and civil conspiracy. The New Mexico statute prohibiting strategic litigation against public participation (Anti-SLAPP) did not apply to a determination of probable cause by a trial court in a recall petition process because it was a judicial proceeding and not a quasi-judicial process covered by the law.

 

New York - N.Y. Civ. Rights Law §§ 70-a, 76-a; N.Y.C.P.L.R. §§ 3211(g), 3212(h)

Civil Rights Law § 76-a is an “anti-SLAPP” law designed to protect parties against strategic lawsuits against public participation brought by a public applicant or permittee.

2014 Legislation:

AB 856SB 7280

Status: Passed Assembly January 14, 2014; Advanced to third reading June 3, 2014

Would mandate attorney fees and costs be awarded to defendants who win their anti-SLAPP motions.

Would expand the application of New York's Anti-SLAPP law to "(1) any communication in a place open to the public or a public forum in connection with an issue of public concern; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition."

2013 Legislation:

A00856

Status: Passed Assembly May 6, 2013; referred to Senate where there was no further action

New York State Bar Association Memorandum in Support

2012 Legislation:

A 10594

Status: Did not pass

Significant Cases

Gilman v. Spitzer, 902 F. Supp. 2d 389 (S.D.N.Y. 2012) The court dismissed the defamation claim, but did not grant Spitzer's anti-SLAPP motion because he "cannot plausibly allege that Gilman's lawsuit is "materially related to any efforts" on the part of Spitzer or Slate to "comment on . . . or oppose" Gilman's insurance license."

Chandok v. Klessig, 632 F.3d 803 (2d Cir. N.Y. 2011).  The Second Circuit confirmed the narrow application of the state’s anti-SLAPP statute, holding it did not protect a scientist who was sued for defamation over statements challenging the reliability of another scientist’s federally-funded research.  The statute only applies to claims brought by a “public applicant or permittee” that are “materially related to any efforts of the defendant to report on, rule on, challenge or oppose such application or permission.”  This narrow definition did not apply to “a person who merely sought government funding for a project that could be financed privately.”

Rubel v. Daily News, LP, NY Slip Op 32407[U] (N.Y. Sup. 2010) (dismissing defamation action against newspaper on fair report grounds, but rejecting argument that the anti-SLAPP statute protected the newspaper stating the statute was not intended to protect media defendants).

Ottinger v. Tiekert, 25 Misc. 3d 1212(A) (N.Y. Sup. Ct. 2009) (granting summary judgment in favor of defendant where defendant posted comments on a newspaper’s website criticizing plaintiffs’ permit applications for a controversial home construction project, but refusing to award costs and attorneys fees, or to consider a claim for additional damages).

Cholowsky v. The Times-Review, 16 Misc 3d 1138[A], 2007 NY Slip Op 51742[U] (Sup Ct, Suffolk County 2007) (dismissing libel complaint under fair report privilege, but remarking that the anti-SLAPP statute does not apply to the press: “[T]he intent behind the statute was and is to protect citizen activists—not the media—who are at a disadvantage in defending lawsuits brought by financially able public applicants or permitees who seek to quell opposition to their applications by private individuals or non-profit groups who cannot afford to defend such suits.”).

Foley v. CBS Broadcasting Inc., No. 169463/05 (N.Y. Sup. Sept. 13, 2006) (refusing to apply anti-SLAPP statute where businesswoman sued CBS and reporter for defamation based on reports regarding a dispute between plaintiff and the New York City Department of Consumer Affairs, on the grounds that plaintiff had not been an applicant for a license at the time of CBS’ first or second broadcasts, and the broadcasted statements did not “directly challenge her application”).

Duane Reade, Inc. v. Clark, 2 Misc. 3d 1007(A) (N.Y. Sup. March 31, 2004) (applying anti-SLAPP statute to libel complaint against community newspaper and editorial adviser for criticism of a proposed billboard, and awarding attorney’s fees and compensatory and punitive damages).

West Branch Conservation Assn, Inc. v. Planning Board of Clarkstown, 222 A.D.2d 513, 636 N.Y.S.2d 61 (NY App. 1995) (statute does not mandate award of fees but leaves it to the discretion of the judge).

 

North Carolina - None

 

North Dakota - None

 

Ohio - None

 

Oklahoma - HB 2366. Oklahoma Citizens Participation Act (signed into law April 22, 2014, will be enacted on November 1, 2014).

If a legal action is based on, relates to or is in response to a party's exercise of the right of free speech, right to petition or right of association, that party may file a motion to dismiss the legal action no later than 60 days after the date of service of the legal action. Judges may extend the time to file on a showing of good cause. The court shall dismiss the legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to or is in response to the party's exercise of the right of free speech, the right to petition or the right of association. Judges shall not dismiss legal actions if the parties who filed the legal actions establish by clear and specific evidence a prima facie case for each essential element of the claim in question (unless the moving party establishes by a preponderance of the evidence a valid defense to each essental element).

 

Oregon - Or. Rev. Stat. §§ 31.150 - 31.155

ORS 31.150 (formerly ORS 30.142) creates a special motion to strike against a claim in a civil action if the claim arises out of: “any statement made in, or in connection with an issue being reviewed by, any proceeding authorized by law; any statement made in public about an issue of public interest; or any conduct in furtherance of the exercise of and the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The burden of proof is initially on the defendant to show that the statement made falls within this scope. Thereafter, the burden shifts to the plaintiff to establish that there is probability of success on the merits.

Significant Cases

Gardner v. Martino, 563 F.3d 981 (9th Cir. April 24, 2009) (declaring that “statements about the quality of consumer goods and services are matters of public interest,” the court affirmed dismissal of a business owner’s claims for false light, defamation, intentional interference with economic relations, and intentional interference with prospective economic advantage against a radio personality, the company that distributed the radio show, and the company that rebroadcast the show, based on comments made on a consumer advocacy program. Plaintiff could not show likelihood of success because court declared the contested statements to be non-actionable opinion.)

Englert v. MacDonell, No. 06-35465, 2009 WL 32559 (9th Cir. Jan. 7, 2009) (in federal court a denial of a motion to strike under Oregon’s anti-SLAPP law is not appealable under the collateral order doctrine).

Higher Balance, LLC v. Quantum Future Group, Inc., Slip Copy, 2008 WL 5281487 (D. Or. Dec. 18 2008) (dismissing complaint brought by a company that sells meditation and spiritual enlightenment tapes and products against a website that had published critical comments.  The decision, among other things, granted the website and its operators immunity under Section 230 of the Communications Decency Act from liability for posts of forum moderators),

Horton v. Western Protector Ins. Co., 217 Or. App. 443, 176 P.3d 419 (2008) (to be timely, a special motion to strike must be filed before the earlier of when a responsive pleading is filed or 60 days).

DuBoff v. Playboy Enterprises Intern, Inc., 2007 WL 1876513 (D. Or. June 26, 2007) (dismissing libel and related claims against publisher of Playboy based on an article discussing litigation over the rights of the domain sex.com and rejecting plaintiff’s argument that the statute shouldn’t apply because the allegedly defamatory statements made about him were not a matter of public interest).

Card v. Pipes, 398 F. Supp. 2d 1126, 1137 (D. Or. 2004). (D. Or. 2004) (granting author’s motion to strike a complaint for libel and intentional infliction of emotional distress where he had been sued for statements made to the New York Post and republished on the Post website).

Application in Federal Court

Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. April 24, 2009) (Oregon's anti-SLAPP statute does not directly conflict with the Federal Rules and Oregon’s civil procedure rules); Card v. Pipes, 398 F. Supp. 2d 1126, 1137 (D. Or. 2004). (D. Or. 2004).

 

Pennsylvania - 27 Pa. Cons. Stat. §§ 7707, 8301 - 8305

The Pennsylvania anti-SLAPP statute provides for the recovery of reasonable attorneys’ fees and costs where a party successfully defends a SLAPP lawsuit in the area of environmental law or regulation.

2014 Legislation:

SB 1095

Status: No action since Senate Judiciary Committee hearing in April 2014

Would expand application of Pennsylvania's anti-SLAPP law beyond participation in environmental law or regulations.

Significant Cases

None reported

 

Puerto Rico - None

 

Rhode Island - R.I. Gen. Laws § 9-33-1 et seq.

Rhode Island’s anti-SLAPP suit statute affords conditional immunity to a defendant against a plaintiff’s claims of tortious interference with contractual relations or defamation, if the defendant can show that his or her activities constitute an exercise of the right to petition or the right of free speech under the United States or Rhode Island Constitutions in connection with a matter of public concern.

Significant Cases

Karousos v. Pardee, 992 A.2d 263 (R.I. 2010) (The court did not reach the issue of whether defendants' zoning appeal efforts were objectively baseless under the anti-SLAPP statute, § 9-33-2(a)(1), because defendants' zoning appeal was not subjectively baseless as defined in § 9-33-2(a)(2))

Palazzo v. Alves, 944 A.2d 144 (R.I. 2008) (trial court dismissed defamation and false light claims brought by state senator against authors of letters to the editor published in a local newspaper; in separate action for compensatory damages the supreme court held the claim should have been brought in the first action as a compulsory counterclaim).

 

South Carolina - None

 

South Dakota - None

 

Tennessee - Tenn. Code Ann. § 4-21-1001 et seq.

In 1997, Tennessee enacted an anti-SLAPP law, creating immunity from civil liability for communications to government agencies regarding a matter of concern to that agency, except where there was actual malice, or negligence in communications pertaining to non-public officials or entities.

Significant Cases

None reported

 

Texas - Tex. Civ. Prac. & Rem. §§ 27.001 et seq. (Modified by HB 2935, signed into law June 14, 2013)

The Texas Citizens Participation Act was signed into law, effective immediately, on June 17, 2011. Texans targeted with a SLAPP can now file a motion to dismiss the suit that suspends discovery until the Court rules on the motion. In addition, the Court may award fees and costs to a SLAPP victim upon the granting of the motion

Significant Cases

Williams v. Cordillera Communications, No. 2:13-CV-124 (S.D. Tex. June 11, 2014). Texas' anti-SLAPP law is substantive, not procedural and applies in federal court. The law's procedural aspects aim to prevent the "substantive consequences--the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit under state law regarding defamation." The reports by KRIS-TV were on a matter of public interest because they involved accusations that a teacher accused of criminal sexual acts with girls, including masturbagin in front of Texas A&M students, was able to get job after job in which he was entrusted with the care of youth. The court said targeted discovery, such as depositions, admission and documents produced through production requests or subpoenas duces tecum, could be used in support of anti-SLAPP motions. The court also found that the anti-SLAPP motion was timely when it was filed within 60 days of a pleading that added claims related to events in 2014. The court concluded the plaintiff did not present clear and specific evidence that the reports were materially false and defamatory. The court did not reach the issues of whether the teacher was a public figure, actual malice or damages.

KBMT Operating Co., LLC v. Toledo, 2014 Tex. App. LEXIS 4956 (Tex. App. Beaumont May 8, 2014). The trial court did not err in denying defendants' motion to dismiss because the physician, a pediatrician, presented evidence that a person of ordinary intelligence would have reasonably, but erroneously, concluded that the "gist" of the broadcasts was that she was punished for engaging in inappropriate conduct, including sexual contact, with a child; the physician's affidavit testimony that the patient in question was a 60-year-old man whom she had been dating constituted clear evidence that the gist of the broadcasts was not true and that they were defamatory under Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Defendants did not show that the "fair report privilege" applied because it was not shown that the broadcasts were a fair, true, and impartial account of an agreed disciplinary order entered by the Texas Medical Board against the physician.

United Food & Commer. Workers Int'l Union v. Wal-Mart Stores, Inc., 2014 Tex. App. LEXIS 4228 (Tex. App. Fort Worth Apr. 17, 2014) Union members who entered privately owned stores and parking lots for the purpose of mass demonstrations with banners and signs might have been exercising rights of free speech or association protected under Tex. Civ. Prac. & Rem. Code Ann. §§ 27.002, but they were not entitled to dismissal under Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) because their activities exceeded the scope of any consent they might have had to enter as invitees shopping at the stores, and the owners thus established under § 27.005(c) a prima facie case for each essential element of trespass to real property

Jennings v. WallBuilder Presentations, Inc., 2012 WL 3500715 (Tex. App. Aug. 16, 2012) (interlocutory appeals from denials of motion limited to situations where trial court failed to timely rule on a timely-filed motion to dismiss).

 

Utah - Utah Code Ann. § 78B-6-1401 et seq.

In 2001 Utah enacted anti-SLAPP legislation titled the “Citizen Participation in Government Act.”  The Act applies where a “defendant in an action. . . believes that the action is primarily based on, relates to, or is in response to an act of the defendant while participating in the process of government and is done primarily to harass the defendant.”

Significant Cases

Crow v. Uintah Basin Elec. Telecomms., 2010 U.S. Dist. LEXIS 129865 (D. Utah Dec. 3, 2010) Under Utah's Anti-SLAPP Act, the proper procedure for dismissing a cause of action under the Anti-SLAPP Act is to file a motion for judgment on the pleadings to determine whether "the primary reason for filing of the complaint was to interfere with the first amendment right of the defendant." Additionally, the right to participate in judicial proceedings is not protected by Utah's anti-SLAPP law.

Jacob v. Bezzant, 2009 UT 37, 212 P.3d 535, 540  (2009) (narrowly interpreting the scope of the statute holding that it applies only to speech seeking to influence decisions by the legislature or executive branch.  At issue in the case was a newspaper editorial which criticized the plaintiff for “negative campaigning” and “misinformation” in the context of a  local election.  The trial court granted defendant’s motion to strike the complaint, ruling that plaintiff “filed the litigation at issue for the purpose of chilling Bezzant’s political speech.”  Reversing the Utah Supreme Court stated that the Utah anti-SLAPP statute was not as broad as California’s anti-SLAPP statute and did not apply to political speech seeking to influence an election.  Instead, the Utah statue is limited to the “protection of citizen participation in the process of government” and the editorial “does not expressly request that the executive or legislative branch of American Fork’s government take any action.”  The Court, however, went on to affirm dismissal of the complaint on the merits, holding that the editorial was not defamatory as a matter of law.)

 

Vermont - Vt. Stat. Ann. tit. 12, § 1041

Vermont enacted anti-SLAPP legislation in 2006.  The statute protects a person’s rights to freedom of speech and freedom to petition by allowing a litigant to move to strike a claim arising out of the exercise of such rights at an early stage in the litigation: “A defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike under this section.”

Significant Cases

Chandler v. Rutland Herald Publishing Co., No. 2015-265 (Vt. Nov. 19, 2015). In a non-precedential decision, the Vermont Supreme Court affirmed the grant of an anti-SLAPP motion to dimiss libel and related claims against a newspaper. At issue was an article describing corruption allegations made by plaintiff in a dispute with police.  The article was a matter of public concern and plaintiff failed to produce any evidence that the article was "devoid of any reasonable factual support and any arguable basis in law" and that defendants' acts caused actual injury" as required by the statute.

Bible & Gospel Trust v. Twinam, No. 2:07-CV-17, 2008 U.S. Dist. LEXIS 111790 ((D. Vt. Dec. 12, 2008) (anti-SLAPP statute is applicable in federal court; plaintiffs sued defendants for copyright, tortious interference and conversion for posting documents to website.  In dicta, court compared the Vermont law to the Massachusetts anti-SLAPP statute).

Haywood v. St. Michael’s College, No. 2:12-CV-164, 2012 U.S. Dist. LEXIS 177468 (D. Vt. Dec. 14, 2012)(applying Vermont's anti-SLAPP statute to strike a complaint filed against a college and two journalism students)

 

Virgin Islands - None

 

Virginia - None

 

Washington - Wash. Rev. Code §§ 4.24.510 - 4.24.525 (Declared Unconstitutional in 2015)

Significant Cases

In Davis v. Cox (Wash. 2015), the state supreme court held that the statute was unconstitutional because it deprived litigants of their right to a jury trial. This is the first decision in the country to hold an anti-SLAPP law unconstitutional. The intermediate appellate court had held that the statute applied to a lawsuit brought against a group boycotting products from Israel. The plaintiffs alleged that the statute was unconstitutional under a variety of theories, including that the burden of proof and presumptive discovery stay violate the separation of powers and right of access to courts, and that the burden of proof is impermissibly vague. In law was enacted in 2010 and was modeled after the California anti-SLAPP statute. The statute protected any public statements and documents submitted to a public forum, as well as “any lawful conduct in furtherance of the exercise of the constitutional right of free speech” that are related to issues of public concern.  It provided a special motions to strike, which required SLAPP plaintiffs to demonstrate, at the outset of the litigation, that they can establish the required elements of their case with convincing clarity. Discovery is stayed pending the decision.  Prevailing defendants may recover a $10,000 fine, reasonable attorneys’ fees, and costs.  Both parties may seek an expedited appeal if a court fails to promptly rule on a motion to dismiss.

Prior Cases

Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936 (9th Cir. 2013) In a defamation action arising out of a business dispute between companies, the district court did not abuse its discretion by entertaining defendants' untimely motion under Washington's anti-SLAPP statute because plaintiffs did not assert any prejudice, and the parties had not engaged in any discovery. The complaint was properly dismissed under § 4.24.525 because plaintiffs could not show a likelihood of success as to any of the alleged defamatory statements since defendants were immune under Wash. Rev. Code § 4.24.510 for all statements made to government agencies, the statute of limitations under Wash. Rev. Code § 4.16.100 barred claims regarding the product alteration and counterfeiting accusations, the statements regarding lead content were nonactionable opinions, and the statements regarding patent infringement were not defamatory.

AR Pillow Inc. v. Maxwell Payton, LLC, 2012 U.S. Dist. LEXIS 172015 (W.D. Wash. Dec. 4, 2012) The court concluded that defendants met their burden of showing by a preponderance of the evidence that defendants' online product review was a statement involving public participation and petition. Plaintiffs did not provide any evidence to demonstrate the truth or falsity of the actual statements made by defendants. Plaintiffs failed to meet their burden by clear and convincing evidence that they would prevail on the falsity element of the defamation analysis. Plaintiffs also failed to show by clear and convincing evidence the probability of prevailing on their tortious interference claim. Pursuant to the Washington anti-SLAPP Act, the court granted defendants' special motion to strike plaintiffs' state law claims for unfair competition, defamation, and tortious interference.

Davis v. Avvo, Inc., 2012 WL 1067640 (W.D. Wash. Mar. 28, 2012) (statute applied to strike lawyer’s complaint over his rating on  attorney review website; defendant awarded attorneys’ fees and $10,000 in statutory damages).

New York Studios, Inc. v. Better Bus. Bureau, No. 3:11-CV-05012-RBL (W.D. Wash. June 13, 2011) (striking claims based on Better Business Bureau press release).  The court noted that the statute provides broader protection than California’s law. Under Wash. Rev. Code 4.24.525.(4)(b), a plaintiff must “establish by clear and convincing evidence a probability of prevailing on the claim.”  In contrast, California law only requires a “probability of prevailing” and does not require the higher burden of “clear and convincing evidence.”  Washington, the court noted, purposefully places a high burden on the plaintiff.

Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104 (W.D. Wash. 2010) (in the first application of the amended statute, court dismissed misappropriation and right of publicity claims against the producers of the documentary movie Sicko.  At issue was the  use in the movie of a short home vide clip in which plaintiff’s image and voice appeared for approximately 17 seconds.  The court first held that the documentary about the U.S. healthcare system fell squarely within the scope of the statute as discussion of a matter of public concern.   Second, plaintiff failed to show a likelihood of prevailing on his claims because the documentary was an expressive work protected by the First Amendment.).

Castello v. City of Seattle et al., 2010 U.S. Dist. LEXIS 127648 (W.D. Wash. Nov. 22, 2010) (reviewing new anti-SLAPP statute and applying it to strike non-media defamation complaint against municipal defendants).

 

West Virginia - None

 

Wisconsin - None

 

Wyoming - None


MLRC Bulletin Articles

New Developments in Media Libel and Privacy Law
(MLRC Bulletin 2012 Issue 3, pp. 78-82)

New Developments in Media Libel and Privacy Law
(MLRC Bulletin 2011 Issue 3, pp. 101-146)

Developments in Anti-SLAPP Law With a Compendium of State Statutes and Key Case Law
(MLRC Bulletin 2010 Issue 4, pp. 23-54)

State Statutes and Related Case Law: Anti-SLAPP Statutes
(MLRC Bulletin 2009 Issue 4, pp. 160-163)

California's Anti-SLAPP Statute - Can It Strike Idea Theft Claims?
(MLRC Bulletin 2009 Issue 4, pp. 57-69)

State Statutes and Related Case Law: Anti-SLAPP Statutes
(MLRC Bulletin 2008 Issue 4, pp. 199-203)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2007 Issue 4, pp. 115-119)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2006 Issue 3/4, Parts II & III, pp. 54-57)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2005 Issue 4, Part A, pp. 63-68)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2004 Issue 4, Part 1, pp. 55-57)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2003 Issue 4, Part 1, pp. 55-57)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2002 Issue 4, Part 1, pp. 50-52)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2001 Issue 4, pp. 96-98

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 2000 Issue 4, pp. 56-57)

Protecting Reporters & Other Speakers: California’s Anti-SLAPP Statute
(MLRC Bulletin 1999 Issue 3, Part II, pp. 83-96)

Protecting Reporters & Other Speakers: State Anti-SLAPP Statutes
(MLRC Bulletin 1999 Issue 3, Part II, pp. 97-114)

Statutes and Related Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 1999 Issue 3, Part I, pp. 65-67)

Statutes and Related Case Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 1998 Issue 4 - October 1998, pp. 74-75)

Statutes and Related Case Law Reported in the Surveys: Anti-SLAPP Statutes
(MLRC Bulletin 1997 Issue 4A - October 1997, pp. 88A-90A)

 
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