Anti-SLAPP legislation is important for anyone who is a party to a defamation lawsuit to understand.
Defamation is defined as a false statement, made about a person to a third party, which damages the person’s reputation. Obviously, there are many forms of unprotected speech: fraud, extortion, incitement, true threats, and false advertising, to name just a few. In theory, defamation is also an unprotected form of speech, to which civil liability attaches. But in practice, various statutory and common law hurdles put in place by courts and legislatures over the years disincentivize the enforcement of defamation law.
One of these hurdles is so-called “anti-SLAPP” legislation. “SLAPP” stands for strategic lawsuits against public participation. State anti-SLAPP laws allow defendants who claim they were sued 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. Ironically, in some ways these laws curtail the First Amendment right to petition the government, which includes the right to bring a lawsuit.
Here at Late Night Law, we have litigated defamation cases on both for 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.
In many states, to survive an anti-SLAPP motion, the plaintiff must meet a heightened, “prima facie” pleading standard. In other words, if the defendant files an anti-SLAPP motion, the plaintiff has to then prove his case, right out of the starting gate, and well in advance of trial. But what showing must a defendant make to invoke the protection of a state’s anti-SLAPP law in the first place? Usually not much, because in many states the language of the anti-SLAPP law is so broad. This puts state lower court judges in the position of having to “know it when they see it.” Judges may misinterpret anti-SLAPP laws and apply unreasonably high standards to plaintiffs—or misread the requirements of the law and fail to ensure that the rights of defendants are adequately protected.
Both Washington state and New Mexico have anti-SLAPP laws. Washington’s version was the first to be enacted anywhere in the nation, and is considerably more defense-friendly than New Mexico’s. In Washington state, 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.
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.
This concept has a chicken-and-egg problem, because there was obviously a profusion of new political activism in the 1960s and 70s.
It was also 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. 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 adopted model anti-SLAPP legislation, with various modifications from state to state. These laws create significant barriers to defamation plaintiffs.
There are several false assumptions that undergird the entire SLAPP concept:
First, there is an assumption that defamation lawsuits are a threat to free speech by definition. But defamation is not protected speech. It does nothing to further healthy public discourse and the search for truth. The framers of the First Amendment were well aware of the common law of defamation and had no intent to limit it. Indeed, the Supreme Court imposed no constitutional limitations on common law defamation suits until the 1960s.
Second, there is an assumption that defamation claims are uniquely abusive and vindictive. This is preposterous: no lawsuit in the world is filed without vindictive sentiment on the part of the plaintiff, and every type of tort claim is susceptible of 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, and injury to reputation is no less harmful to the victim than many other forms of injury redressable at law. Systemic problems with civil procedure (and there are many) should be addressed systemically by courts and legislatures.
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. If anything, the burden that speech-based tort claims impose on busy courts can be eased by disincentivizing defamatory speech, thus reducing the volume of defamation cases—at least in the long run. Making it easier to get away with defamation isn’t the answer—especially in the era of social media. While reducing anti-SLAPP protection might result in a glut of defamation cases at first, we believe that this would taper off over time, as incentives around speech start to shift, especially on social media.
Another problem with anti-SLAPP laws is that 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, and anti-SLAPP statutes make it even harder. When a defendant files an anti-SLAPP motion, the plaintiff then must show a probability of success on the merits before discovery can commence. But because actual malice refers to the defendant’s mental state, it often requires discovery to prove. That’s a catch-22 that impinges due process and the right to petition.
By erecting these barriers to liability, anti-SLAPP laws encourage defamation, which has no connection to free speech, the search for truth, or a healthy public discourse.
We all know that the First Amendment protects freedom of speech, and freedom of the press. But it also protects the right to petition the government for relief when you are wronged. Here is the full text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That last part—the right “to petition the Government for a redress of grievances,” includes the right to bring a lawsuit when someone defames you. See McDonald v. Smith, 472 U.S. 479, 484 (1985) (“filing a complaint in court is a form of petitioning activity.”)
While anti-SLAPP laws can be useful for promoting freedom of speech, they can also encourage defamatory disinformation, which undercuts the whole purpose of free speech protections—namely, the search for truth through healthy public discourse.
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.