Defamation is a form of speech that is not strongly protected by the First Amendment. It is defined as a false statement, made about a person to a third party, which damages the person’s reputation. Defamation is considered a civil wrong, meaning that you can be sued for it.
If you are a party to a defamation lawsuit, it is important to understand anti-SLAPP laws. SLAPP stands for “strategic lawsuits against public participation,” meaning a lawsuit brought in retaliation for the exercise of First Amendment rights. More than half the states have anti-SLAPP laws, including New Mexico.
Anti-SLAPP laws allow defendants who claim they were sued for First Amendment activities to bring an expedited motion to dismiss, early in a case. Because defamation is a form of speech, and because defamation defendants will almost always raise a First Amendment defense, anti-SLAPP laws are particularly applicable to defamation lawsuits.
Anti-SLAPP motions must generally be brought within the first sixty or ninety days of a lawsuit. When a defendant brings an anti-SLAPP motion, the burden then shifts to the plaintiff to show that he has a case, under a heightened, “prima facie” standard. That means that the plaintiff has to start bringing out evidence to support the claim quite early in the case, before even being permitted to conduct discovery. In most states, anti-SLAPP laws include a fee-shifting provision, enabling successful defendants to recover their attorney fees from the plaintiff. Some states allow a plaintiff who defeats an anti-SLAPP motion to recover attorney fees from the defendant.
Anti-SLAPP laws have been criticized as violating the First Amendment right to petition, which includes the right to bring a lawsuit. We have discussed these criticisms before.
Many states permit a defendant to bring an anti-SLAPP motion if he is accused of any speech on a matter of public interest, which is defined quite broadly and can include speech on lots of different topics.
However, New Mexico’s anti-SLAPP law is relatively weak compared to other states. This is because it only applies to speech made in connection with a public meeting of a state agency or political subdivision. Thus, if you’re sued for defamation on social media in regard to a personal matter, or a matter of only general public interest, you cannot file an anti-SLAPP motion—that tool of defense will not be available to you in New Mexico.
Where New Mexico’s anti-SLAPP law is more in line with other states is in relation to the fee shifting provision. Under New Mexico’s anti-SLAPP law, the fee shifting provision protects plaintiffs only if the court finds that the defendant brought the anti-SLAPP motion frivolously, meaning if there was no real basis for it.
If you have a defamation matter in New Mexico, or a defamation matter in the state of Washington, contact LATE NIGHT LAW, or call for a free initial consultation at (505) 225-2623.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.