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 almost any other kind of civil case. For that reason, it’s not quite accurate to say that defamation is unprotected. It’s actually strongly protected in many states.
Defamation is defined as a false statement that damages another person’s reputation. One major hurdle to defamation lawsuits called anti-SLAPP legislation. If you ever become a party to a defamation lawsuit, it is important to understand anti-SLAPP laws.
What Is a SLAPP Suit?
“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. In most states, these laws include a fee-shifting provision, enabling successful defendants to collect their attorney fees from the plaintiff. One frequent criticism of these laws is that, ironically, they tend to curtail the First Amendment right to petition the government, which includes the right to bring a lawsuit.
At Late Night Law®, we represent both plaintiffs and defendants. Anti-SLAPP laws are a powerful tool for defendants. But while legislation that makes it harder to bring a lawsuit helps to ensure that fewer meritless cases get filed, it also singles out defamation plaintiffs, when other types of claim are equally susceptible to abuse.
Who Has the Burden of Proof?
There is some variation from state to state in the pleading standard a complaint must meet in order to survive an anti-SLAPP motion. However, generally, these statutes incorporate the pleading standards that apply to an initial motion to dismiss, or a motion for summary judgment. Washington was the first state to enact an anti-SLAPP law, in 1989. A 2010 amendment to the law required plaintiffs to meet a heightened, clear-and-convincing standard, but the Washington Supreme Court overturned it, on the grounds that requiring the court to weigh evidence violates the right to trial by jury. Davis v. Cox, 183 Wn.2d 269, 351 P.3d 862 (2015).
The scope of anti-SLAPP laws differs from state to state as well. In Washington, the anti-SLAPP statute applies to nearly any speech on a topic of public concern. RCW 4.24.525. However, in New Mexico, the anti-SLAPP statute only applies to speech or conduct “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. Thus, in practice, New Mexico’s anti-SLAPP law applies only to statements made in places like school board meetings, city council meetings, or at public meetings of state administrative agencies.
Are SLAPP Suits a Real Problem?
The “SLAPP” acronym was first coined by Professors George Pring and Penelope Canan (a law professor and a sociologist, respectively) in a pair of academic papers published in 1989. Pring and Canan claimed to have identified a significant new phenomenon of lawsuits (mostly for defamation) filed by powerful political and financial interests against journalists and community activists, to silence dissent. But this concept has a chicken-and-egg problem, because there was obviously a profusion of new political activism in the 1960s and 70s.
In addition, the proposition that powerful interests were bringing more and more SLAPP litigation was not very well attested. As Professor Pring wrote,
We collected and studied 228 SLAPPs. Our selection criteria were four in number. To qualify as a SLAPP, the case had to be: 1. a civil complaint or counterclaim… 2. filed against non-governmental individuals [or] groups, 3. because of their communications to a government body, official, or the electorate, 4. on an issue of some public interest or concern.
This methodology is troubling, for three reasons. First, the inclusion of counterclaims in the survey sample is misleading, because a counterclaim does not initiate a lawsuit. Thus, it cannot really be said that someone who brings a counterclaim has initiated litigation in order to suppress free speech. Second, the small sample size of only 228 lawsuits is also problematic: millions of lawsuits are filed every year in state and federal courts, and that was certainly true in 1989. Third, the criteria used to define these purported “SLAPPs” is extremely broad, encompassing any lawsuit filed “because of communications to the electorate on an issue of some public interest or concern,” which could of course include almost anything.
In the years since Professors Pring and Canan minted the SLAPP concept, most states have some form of anti-SLAPP legislation. These laws create significant barriers to defamation plaintiffs.
There are several false assumptions that undergird the entire SLAPP concept:
First, there is the assumption that defamation law is ipso facto threating to free speech. But defamation is not supposed to be protected speech. It does nothing to further healthy public discourse and the search for truth, and the framers of the Bill of Rights had no intent to abrogate it. Instead, the Supreme Court constitutionalized defamation law the 1960s by imposing novel, heightened standards of pleading and proof.
Second, there is an assumption that defamation claims are uniquely abusive and vindictive. That is preposterous. As Justice Kagan once said, “Reputational harm is real harm, and the legal system should not pretend that it is not.”
Besides: no lawsuit in the world is filed without vindictive sentiment on the part of the plaintiff, and every type of tort claim is susceptible to abuse and misapplication. That’s just the reality of civil litigation, and it’s why motions to dismiss can always be brought early in any lawsuit. Promoters of the SLAPP concept lament that defamation claims are expensive to defend, but all lawsuits are expensive to defend. Systemic problems with civil procedure should be addressed by courts and legislatures through a wider lens.
Third, there is an assumption that without anti-SLAPP protection, meritless cases may overburden the courts. But robust civil liability for defamation encourages truthfulness in public discourse, and discourages dishonesty. In the era of social media, incentives around speech are sorely in need of reform. If anything, the burden that defamation claims impose on busy courts can be eased in the long-term by disincentivizing defamatory speech. Making it easier to get away with defamation isn’t the answer—especially in the era of social media. Plaintiffs whose reputations are injured will continue bringing claims regardless.
Public Figure Analysis Adds Complexity
In modern times, the Supreme Court has held that when a defamation plaintiff is a public figure, he must prove actual malice, meaning he must show that there was an intentional lie, or a reckless disregard for the truth. This standard is difficult to satisfy because it requires extrinsic evidence of a defendant’s state of mind. Anti-SLAPP statutes make this burden even more onerous. When a defendant files an anti-SLAPP motion, the plaintiff must satisfy this standard before he can obtain discovery needed to prove intent. It’s catch-22 that impinges on due process, the right to petition, and the right to trial by jury.
Defamation Is Not Free Speech
By erecting these barriers to liability, anti-SLAPP laws protect and encourage defamation, which has little connection to free speech, the search for truth, or a healthy public discourse.
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.
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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