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 riskier to bring a defamation lawsuit than other types of civil claims.
What Are Anti-SLAPP Laws?
One of the primary hurdles for defamation plaintiffs is anti-SLAPP legislation. “SLAPP” stands for strategic lawsuit against public participation. Essentially, state anti-SLAPP laws allow defendants who claim they were sued in retaliation for First Amendment activities to bring a motion to dismiss, early in a defamation case, and recover their attorney fees if they are successful at winning dismissal. Courts must hear these motions on an expedited basis.
At present, forty states have enacted some form of anti-SLAPP law, including Washington. In fact, Washington was the first state anywhere in the country to enact such legislation, in 1989.
How Much Speech Do Anti-SLAPP Laws Protect?
Anti-SLAPP defenses may be raised in various types of cases. However, 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.
The scope of First Amendment activity protected by anti-SLAPP legislation differs from state to state. For example, New Mexico’s anti-SLAPP law is relatively narrow, protecting only speech made in connection with a public meeting or administrative proceeding. Washington’s anti-SLAPP law is much broader, covering all First Amendment protected speech and petitioning activity.
Anti-SLAPP legislation has been criticized in recent years for being susceptible to overuse. In other words, in some states these laws have been worded so broadly that creative defense attorneys are able to successfully invoke them outside of traditional speech tort contexts, to dismiss ordinary commercial, property, and family law disputes.
Washington’s anti-SLAPP law addresses this concern by providing a long list excluding types of cases where the law does not apply. RCW 4.105.010(3). Unless the speech at issue concerns a matter under present consideration by a public body, the law excludes property disputes, Consumer Protection Act claims, common law fraud, insurance bad faith, protective order proceedings, as well as classic personal injury claims for physical injury or wrongful death. The law also excludes cases where the government, or a government employee, is a party.
How Do Anti-SLAPP Laws Work?
The plaintiff has the burden of first showing that the anti-SLAPP law applies. If that is shown, the burden shifts to the defendant to establish a prima facie case as to each element of his claim. Washington’s anti-SLAPP law also incorporates the standards needed to defeat a motion to dismiss under Washington CR 12(b)(6) and CR 12(c), as well as a motion for summary judgement under CR 56. This multiplicity of dismissal standards is susceptible to confusion on the part of both judges and parties.
Like in other states, Washington’s anti-SLAPP law stays (freezes) most of the proceedings in a case, pending resolution of the anti-SLAPP motion. RCW 4.105.030. Unlike many other states, Washington’s anti-SLAPP law provides a notice requirement of fourteen days prior to filing the motion, allowing the plaintiff a window of time to amend or withdraw their complaint without facing the possibility of paying the plaintiff’s attorney fees. RCW 4.105.020(1).
A plaintiff who fails to provide notice may still file an anti-SLAPP motion, but may not recover attorney fees. The notice provision wisely prioritizes the goal of expediting litigation over the goal of punishing the plaintiff. However, defendants have to move fast in serving notice, because anti-SLAPP motions must also be brought within a limited timeframe. In Washington, that limit is sixty days after service of the summons and complaint, although a later anti-SLAPP motion is permitted upon a showing of good cause for the delay.
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 outcome 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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