Some forms of speech are unprotected by the First Amendment: fraud, extortion, incitement, true threats, and false advertising, to name a few. In theory, defamation is also an unprotected form of speech, to which civil liability attaches. That means you can be sued for it. But in practice, there are statutory and judicial hurdles that make it a lot riskier to bring a defamation lawsuit than other types of civil claims.
What Are Anti-SLAPP Laws?
One of these hurdles is anti-SLAPP legislation. “SLAPP” stands for strategic lawsuits against public participation. State anti-SLAPP laws allow defendants who claim they were sued in retaliation for First Amendment activities to bring an expedited motion to dismiss, early in a defamation case.
At present, forty states have enacted some form of anti-SLAPP law, including New Mexico. 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. For that reason, it is important to understand anti-SLAPP legislation if you ever become party to a defamation suit.
How Much Speech Do Anti-SLAPP Laws Protect?
Some states have anti-SLAPP laws that broadly protect any speech on a topic of public concern. However, the New Mexico anti-SLAPP law is relatively narrow. It applies only to lawsuits “seeking money damages against a person for conduct or speech… 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.” N.M.S.A § 38-2-9.1(A). That includes proceedings before state administrative agencies, as well as public meetings of state and local government bodies. § 38-2-9.1(D).
Because of the narrowness of New Mexico’s anti-SLAPP law, anti-SLAPP motion practice is relatively rare in New Mexico courts. Here at Late Night Law®, we have experience representing defamation defendants as well as plaintiffs, and we have experience with anti-SLAPP motion practice before the courts of New Mexico.
How Does New Mexico’s Anti-SLAPP Law Work?
Anti-SLAPP motions must be brought within a limited timeframe. In New Mexico, that limit is the first ninety days of a lawsuit. Unlike other states, the New Mexico anti-SLAPP law does not go into detail about who has the burden of persuasion in anti-SLAPP practice, and what pleading standards apply. Rather, it simply provides that defendants may bring an expedited motion to dismiss, motion for summary judgment, or motion for judgment on the pleadings. § 38-2-9.1(B).
In New Mexico as in most states, the anti-SLAPP law includes a fee-shifting provision, enabling successful defendants to recover their attorney fees from the plaintiff. § 38-2-9.1(B). Some states also allow a plaintiff who defeats an anti-SLAPP motion to recover attorney fees from the defendant. In New Mexico, a defamation plaintiff who defeats and anti-SLAPP motion can recover attorney fees only if he shows that the motion was completely frivolous. § 38-2-9.1(B).
Every other state that has an anti-SLAPP law (except Florida) requires a stay of proceedings in the case until a pending anti-SLAPP motion is decided. This is a huge advantage for defamation defendants, because it prevents the plaintiff from driving up costs with discovery while the motion is pending. However, New Mexico’s anti-SLAPP law does not provide for a stay of the proceedings, or a stay of discovery.
On the other hand, it does require that the court hear the anti-SLAPP motion on an expedited basis, which is one of the main advantages this legislation affords defendants in defamation cases. As defamation lawsuits proliferate in the era of social media, it helps to know more about anti-SLAPP laws and how they can effect the course of defamation cases.
Late Night Law® is a dedicated defamation, privacy and social media law firm. If you are the target of doxxing, defamation or cyberstalking in New Mexico, in Washington, or in Texas, contact us at (505) 225-2623 to schedule a free consultation with a defamation attorney today.
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.
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