To guard against the chilling effect of SLAPPs, twenty-eight states, the District of Columbia, and one U.S. territory have enacted anti-SLAPP statutes. The U.S. jurisdictions with anti-SLAPP statutes are: Arizona; Arkansas; California; Delaware; District of Columbia; Florida; Guam; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Texas; Utah; Vermont; and Washington. Some other states' courts (notably Colorado and West Virginia) have recognized anti-SLAPP-like protection as a matter of case law.
State laws vary with regard to the protection offered against SLAPP suits. Consult the state sections below to learn more about whether the states listed have an anti-SLAPP law and, if so, how it works in practice. (Note that the guide does not include every state at this time.)
Note: This page covers information specific to Arizona. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
A.R.S. § 12‑752 allows you to counter a SLAPP suit against you by filing a motion to dismiss. The statute also provides that the court shall grant the moving party costs and reasonable attorney fees, if the court grants the motion to dismiss.
The Arizona anti-SLAPP statute applies to legal actions involving “a party’s exercise of the right of petition.” A.R.S. § 12‑751 defines “exercise of the right of petition” as
any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:
- Made before or submitted to a legislative or executive body or other governmental proceeding.
- Made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding.
- Made for the purpose of influencing a governmental action, decision or result.
The statute further defines “governmental proceeding” to include proceedings by an official, officer, or body of the state, political subdivision of the state, or federal government. Id. The definition excludes judicial proceedings. Id.
If your statement does not fall within the definition of “exercise of the right of petition,” it will not be covered by the Arizona anti‑SLAPP statute. See Tennenbaum v. Arizona City Sanitary District, 799 F. Supp. 2d 1083 (D. Ariz. 2011) (holding that the Arizona anti‑SLAPP statute does not apply to a letter sent by legal counsel for the city Board of Directors or presentation at an open forum of the Board defending actions of the Board to the public because they were not part of a “recall effort” or “made before . . . a governmental proceeding” or “made for the purpose of influencing a governmental action, decision, or result”); Varela v. Perez, No. CV‑08‑2356‑PHX‑FJM, 2009 U.S. Dist. LEXIS 116027 (D. Ariz. Nov. 25, 2009) (holding that the Arizona anti‑SLAPP statute does not apply to “the filing of a criminal complaint with law enforcement”).
The statute specifically provides that it does not:
A.R.S. § 12‑752(E).
The Arizona anti‑SLAPP statute gives you the ability to file a motion to dismiss within 90 days after service of the complaint or, in the court's discretion, at any later time on terms that the court deems proper. A.R.S. § 12‑752(C). (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a motion to dismiss under the anti-SLAPP statute.)
The statute provides that, "[w]hen possible," the court must give "calendar preference" to an action filed under the statute and that the court must conduct an expedited hearing after the motion is filed and notice of the motion has been served as provided by court rule. A.R.S. § 12‑752(A).
The court will grant the motion to dismiss unless the responding party shows that your exercise of the right of petition "did not contain any reasonable factual support or any arguable basis in law" and that your "acts caused actual compensable injury to the responding party." A.R.S. § 12‑752(B). "In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating facts on which the liability or defense is based." Id.
If you request it, the court will also make findings about "whether the lawsuit was brought to deter or prevent the moving party from exercising constitutional rights and is thereby brought for an improper purpose" such as to harass or delay or increase the cost of litigation. Id. If the court finds that the lawsuit was brought for these purposes, then the statute states that you are "encouraged" to pursue additional sanctions "as provided by court rule." Id.
If you prevail on your motion to dismiss, the statute provides that the court "shall" award you "costs and reasonable attorney fees, including those incurred for the motion." The statute states that "costs" means "all costs that are reasonably incurred in connection with a motion to dismiss pursuant to this section" including "filing fees, record preparation and document copying fees, documented time away from employment to confer with counsel or attend case related proceedings, expert witness fees, travel expenses and any other costs that the court deems appropriate."
However, if you do not prevail and the court finds that your motion to dismiss is "frivolous or solely intended to delay," the court "shall" award "costs and reasonable attorney fees to the prevailing party on the motion." In determining whether the motion to dismiss is frivolous, the court may consider whether the case involves novel issues of law. See Tennenbaum, 799 F. Supp. 2d at 1090.
If you succeed in fending off a SLAPP lawsuit in Arizona, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Arizona does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to California. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use California's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Cal. Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs. In addition, if a party to a SLAPP suit seeks your personal identifying information, California law allows you to make a motion to quash the discovery order, request, or subpoena.
Not every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily to discourage speech about issues of public significance or public participation in government proceedings. To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Although people often use terms like "free speech" and "petition the government" loosely in popular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories of activities:
Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third category above, which applies to a written statement in a public forum on an issue of public interest.
Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so long as it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App. 2001).
Many different kinds of statements may relate to an issue of public interest. California courts look at factors such as whether the subject of the disputed statement was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Certainly, statements educating the public about or taking a position on a controversial issue in local, state, national, or international politics would qualify. Some other examples include:
In contrast, California courts have found other statements to be unrelated to an issue of public interest, including:
Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging public participation, you do not need to show that the SLAPP actually discouraged you from participating or speaking out. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech.
In addition to providing a motion to strike, California law also allows a person whose identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or modify the subpoena seeking your personal identifying information so you do not have to provide that information. Cal. Civ. Pro. Code § 1987.1.
The California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days after filing. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out of a protected speech or petition activity (discussed above). Assuming you can show this, the court will then require the plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is not meant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able to make this showing, and the court will dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.
If the court denies your motion to strike, you are entitled to appeal the decision immediately.
In addition to creating the motion to strike, the statute also allows a person whose personal identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.
When you make your motion to quash, the court "may" grant your request if it is "reasonably made." In reviewing your motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she must present evidence to support all of the elements of the underlying claim (or, at least, all of the elements within the plaintiff's control). See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If the plaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.
If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and request assistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit in California, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the First Amendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP in California.
If you prevail on a motion to strike under California's anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).
Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a "SLAPPback" suit against your opponent. A "SLAPPback" is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code § 425.18 (setting out certain procedural rules for "SLAPPback" suits). Section 425.18 contemplates bringing a SLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring a SLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.
If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion to award expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion "in bad faith or without substantial justification," or if at least one part of the subpoena was "oppressive." Cal. Civ. Pro. Code § 1987.2(a). But note that if you lose your motion to quash, and the court decides that your motion was made in bad faith, you may have to pay the plaintiff's costs of opposing the motion.
If you successfully quash a California identity-seeking subpoena that relates to a lawsuit filed in another state, the court "shall" award all reasonably expenses incurred in making your motion - including attorneys' fees - if the following conditions are met:
Cal. Civ. Pro. Code § 1987.2(b).
Note: This page covers information specific to Colorado. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
While Colorado has no dedicated anti-SLAPP statute, Colorado courts have developed procedures that may provide some relief if you believe you are facing a SLAPP suit. If the lawsuit against you is based on your exercise of your "First Amendment right to petition the government for redress of grievances," the Colorado court will subject the plaintiff's claims against you to elevated scrutiny, making it easier for you to get those claims dismissed. Protect Our Mountain Environment, Inc. v. The District Court In and For the County of Jefferson, 677 P.2d 1361, 1368 (Colo. 1984) (a.k.a. "POME"; the special motion is generally referred to as a "POME motion," after the name of this case). With some possible exceptions, you will not be able to recover your attorneys' fees or court costs after a successful POME motion.
The POME decision on its face covers a very narrow range of conduct. Specifically, it protects the First Amendment right to petition the government for relief of legitimate grievances without fear of retaliation. In POME, an environmental activism group opposed a proposed real-estate development. The group brought a case against both the developer and the county board that had approved the project. The trial court and subsequent appellate court both ruled against the environmental group. The developer then sued the environmental group, claiming that the group had abused the legal process by challenging the proposed development.
The Colorado Supreme Court, in its decision on the developer's lawsuit against the environmental group, ruled that the First Amendment right to petition requires protection against this kind of lawsuit. Thus, in Colorado, if someone sues you because you previously filed a legitimate (non-frivolous) lawsuit, or otherwise petitioned the government for action, a POME motion might help you get the new lawsuit dismissed.
Subsequent cases have helped to clarify what sorts of "petitioning" are protected by POME. For example, attending public hearings to oppose a construction project is protected. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Repeated lawsuits in a contentious divorce are also within POME's purview. In re Foster, 2011 WL 2139136 (Colo., May 23, 2011). However, the outer limits of POME's protections remain unclear.
A 1986 Colorado Supreme Court decision suggests that at least some other lawsuits (like some libel claims) may require POME scrutiny as well. Concerned Members of Intermountain Rural Elec. Ass'n v. District Court, County of Jefferson, 713 P.2d 923 (Col0. 1986). See also James H. Moore & Associates Realty v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994) (implying that POME may apply to other First Amendment rights). However, a May 2011 trial court ruling (which is not binding in other cases) states that POME only applies if you are being sued for "misuse or abuse of the administrative or judicial processes of the government." It is therefore an open question as to whether POME would apply to defamation claims or lawsuits that do not alleged abuse of governmental process.
If you are sued over conduct (like a past lawsuit) that you believe may be protected by POME, you can file a motion to dismiss under C.R.C.P. 12(b)(5), raising the defense that your past conduct was protected by the First Amendment. At that point, the person suing you will have to satisfy POME's three-part test:
Generally, you will NOT eligible for an award of attorneys' fees if you win a POME motion. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Colorado does have a statute through which a defendant can receive costs and fees, but only if the lawsuit is dismissed in response to a standard motion to dismiss under CRCP 12(b). For this reason, you may wish to pursue other defenses before turning to POME; if you can win a motion to dismiss without relying on POME, you may be able to recover your costs and fees. See CRSA § 13-17-201.1
If you are facing a SLAPP-suit that does not fall within POME's protections, you may consider filing an abuse of process claim in response. Such a claim would require you to show
See James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994). Remember that pursuing any legal claim can be a long, expensive process. Note also that your abuse of process claim would itself be subject to POME's standard.
Note: This page covers information specific to Florida. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
Florida has two narrow anti-SLAPP statutes, but neither is likely to protect bloggers and non-traditional journalists engaging in online publishing activities. Fla. Stat. § 768.295 protects against SLAPPs brought by government entities in retaliation for exercising one's right to petition the government. Fla. Stat. § 720.304 protects a homeowner's right to petition the government when acting to "address matters concerning [his or her] homeowners' association." It applies to SLAPPs brought by individuals, business associations, and government entities.
Fla. Stat. § 768.295 applies to SLAPPs brought by the government in response to the exercise of "the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities" of Florida.
Fla. Stat. § 720.304 (4) applies only to homeowners in a homeowners' association. It protects a homeowner's exercise of "the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities" of Florida. The statute, which applies to SLAPPs brought by individuals, business associations, and government entities, further explains that it is aimed at protecting against lawsuits arising out of a homeowner's "appearance and presentation before a governmental entity on matters related to the homeowners' association."
The CMLP has not identified any relevant case law concerning how either of these statutes apply to online speech activities. Based on the language of the statute, however, it seems unlikely that either one would protect online activity that occurs outside of official government proceedings. On the other hand, these statutes might protect you if you made statements on a government-operated forum, or if you used your online platform to call on the government to address an issue of public concern (or, in the case of the latter statute, an issue related to a homeowners' association).
If you are served with a complaint that you believe to be a SLAPP (as described in the section above), you should seek legal assistance immediately. Under Florida's anti-SLAPP laws, you can file a motion to dismiss or a motion for summary judgment under section 768.295 (5) in the case of a government SLAPP or section 720.304 (4)(c) in the case of a homeowner-related SLAPP. In either situation, after the party suing you has filed its response, the court will hear your motion "at the earliest possible time."
If you prevail on a motion to dismiss or a motion for summary judgment under the anti-SLAPP statutes, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. In addition, the court may award you any damages sustained as a result of the lawsuit. Further, if the court rules for you under the homeowner anti-SLAPP law, it may award you treble damages (i.e., 3X your actual damages).
If you succeed in fending off a SLAPP in Florida, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Florida does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Georgia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Georgia's anti-SLAPP law to counter a SLAPP filed against you, but only in limited situations. Ga. Code Ann., § 9-11-11.1 allows a defendant to move to dismiss a SLAPP, provided that the exercise of free speech that prompted the lawsuit is about "an issue under consideration or review by a governmental body." If the court grants your anti-SLAPP motion, you may recover expenses and attorneys' fees from the SLAPP filer.
To challenge a lawsuit as a SLAPP in Georgia, you need to show that the plaintiff is suing you for an act "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern." Ga. Code Ann., § 9-11-11.1(b). The statute further defines this as
Ga. Code Ann., § 9-11-11.1(c). This definition limits your protection under the anti-SLAPP statute to (1) statements made in an official government proceeding, (2) statements relating to an issue currently under consideration or review in an official government proceeding, and (3) statements calling for such official review or consideration.
Categories 2 and 3 are the most important for online publishers. It is important to note what is not included here: If someone sues you for making statements on your website or blog about a topic or issue of ordinary public interest that is not under government consideration or review, and you are not calling for such consideration or review, then you are not entitled to bring an anti-SLAPP motion to dismiss under section 9-11-11.1.
For example, in Berryhill v. Georgia Community Support & Solutions, 281 Ga. 439 (2006), Shirley Berryhill allegedly made statements in web postings and emails complaining about the poor treatment and care provided to her handicapped son by a healthcare facility. The Georgia Supreme Court held that, although Ms. Berryhill's statements pertained to a matter of public concern, she could not invoke the anti-SLAPP statute because her statements did not relate to an existing official proceeding or request the initiation of an official investigation or proceeding.
When a plaintiff files a lawsuit against someone for an act which reasonably could be viewed as "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" (as defined above), the anti-SLAPP law requires the plaintiff and his or her attorney to file written verifications under oath certifying that the claim is well grounded in fact and is warranted by existing law or a good faith argument for the modification of existing law. Ga. Code Ann., § 9-11-11.1(c).
If you are sued, and you believe that your speech fits the criteria outlined in the section above, you should bring this verification requirement to the attention of the plaintiff or his or her attorney. If the plaintiff fails to make the required verifications within ten days of being notified, the court must dismiss the case.
If the plaintiff submits the required verifications, you can file a motion to dismiss the case for improper verification in violation of Ga. Code Ann., § 9-11-11.1(b). Once you have made the motion, the court must hear it within thirty days, barring court emergencies. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In deciding the motion, the court will first consider whether your speech fits the criteria described in the section above. If it finds that you are eligible to make the motion, the court will then examine the verifications and documents submitted by the plaintiff. After this review, if the court finds that the plaintiff or attorney either did not believe that the legal claim was legitimate or brought the lawsuit against you for an improper purpose, then the court will grant your motion to dismiss. Alternatively, the court will grant your motion to dismiss if the judge finds that your statements were made in good faith. See Atlanta Humane Society v. Harkins 278 Ga. 451, 455-56 (Ga. 2004). If the plaintiff's case is strong, however, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
If you prevail on a motion to dismiss under Georgia's anti-SLAPP law, the court will dismiss the lawsuit against you, and you can ask the court to impose sanctions on the other side. These sanctions may include your expenses in defending against the suit, including reasonable attorneys' fees.
In addition, if you succeed in fending off a SLAPP in Georgia, you may be able to bring a claim for malicious prosecution or abuse of process against the SLAPP filer. While Georgia does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Illinois. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Illinois's anti-SLAPP statute, known as the Citizen Participation Act (CPA), to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike or dismiss a complaint filed against you based on "[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation in government." If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for "any act or acts in furtherance of [your] rights of petition, speech, association, or to otherwise participate in government." 735 Ill. Comp. Stat. 110/15 (scroll down). Such actions are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."
The Illinois Supreme Court has interpreted the CPA narrowly. According to the 2012 case Sandholm v. Kuecker, there are two scenarios in which the CPA does not provide relief:
The CMLP has not identified any further Illinois case law interpreting this language or applying it to online publishing activities. If you know about any relevant cases, please contact us.
The CPA gives you the ability to file a motion to strike or dismiss a complaint brought against you for exercise of the aforementioned rights. The court must hear the motion within ninety days of your filing it, and it must grant the motion unless it finds that the SLAPP filer has produced "clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act." 735 Ill. Comp. Stat. 110/20 (scroll down).
While the motion is pending, your opponent generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
The CPA also allows a party who believes it has been the subject of a SLAPP to get a speedy decision on its motion to dismiss and to file an expedited appeal if the court denies the motion. Section 20(a) of the CPA states:
On the filing of any motion as described in Section 15, a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
If you prevail on a motion to strike or dismiss under the CPA, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs incurred in connection with the motion. See 735 Ill. Comp. Stat. 110/25 (scroll down).
If you succeed in fending off a SLAPP in Illinois, you may be able to bring a claim for malicious prosecution against the SLAPP filer. While Illinois does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. Previously, an Illinois appeals court held that bringing a SLAPP does not amount to malicious prosecution under Illinois law, see Levin v. King, 648 N.E.2d 1108, 1113 (Ill. App. Ct. 1995), but that ruling occurred before the Illinois legislature enacted the CPA. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Indiana. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Indiana's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to dismiss a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-1(a). If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an act or omission "in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-5 (1). You also need to establish that your action was "taken in good faith and with a reasonable basis in law and fact." Ind. Code § 34-7-7-5 (2).
Indiana courts have interpreted the "right of petition or free speech . . . in connection with a public issue or an issue of public interest" to include media coverage of newsworthy events. "Newsworthiness" is a flexible concept, and it is sometimes difficult to predict what topics a court will deem to fit the definition. But, in all likelihood, news reports and even informal posts about current events and significant economic, political, and social issues would fit the bill.
In contrast, statements and postings of a more personal character are less likely to be "in connection with a public issue or an issue of public interest." For example, in Hamilton v. Prewett, 860 N.E.2d 1234, 1247 (Ind. App. 2007), an Indiana appeals court held that the anti-SLAPP law did not protect a website operator who parodied a local business man because the website did not address a "public issue."
To prevail on a motion to dismiss under the anti-SLAPP statute, you will also need to show that your action was "lawful." See Ind. Code § 34-7-7-9 (d). Therefore, if your speech constitutes defamation, extortion, or some other unlawful act, the anti-SLAPP law does not protect you.
The Indiana anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition or free speech (as defined above). The court must hear and rule on the motion within 180 days of your filing it.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
When filing a motion to dismiss, you must specify the public issue that prompted your speech or petition activity. See Ind. Code § 34-7-7-9(b). You also need to provide evidence establishing that your act was taken in good faith and with a reasonable basis in law and fact. After the motion is filed, the court will establish a schedule for taking discovery relevant to the motion -- that is, exchanging documents, taking deposition, and answering written questions on the issue of whether your action was lawfully taken in furtherance of your right of petition or speech.
If you prevail on a motion to strike or dismiss under the Indiana anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Ind. Code § 34-7-7-7.
If you succeed in fending off a SLAPP-type lawsuit in Indiana, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Indiana does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Massachusetts. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Massachusetts' anti-SLAPP statute, found at M.G.L. c. 231, § 59H, to counter a SLAPP suit filed against you, at least under some circumstances. The statute allows you to file a special motion to dismiss a complaint filed against you based on your "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." The statute, by its terms, does not apply to speech activity that is not connected to petitioning the government, but Massachusetts courts have interpreted petitioning activity to include some online publishing activities. If a court grants a motion to dismiss under the anti-SLAPP statute, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
To challenge a lawsuit as a SLAPP in Massachusetts, you need to show that the plaintiff is suing you for "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." M.G.L. c. 231, § 59H. The statute defines "a party’s exercise of its right of petition” to include a written or oral statement that is:
To make use of Massachusetts' anti-SLAPP motion, you will need to show that your speech activity fits into one of these categories. You will also need to prove that your exercise of the right of petition was the the sole cause of the plaintiff's lawsuit against you. If the plaintiff's lawsuit involves other issues, such as contractual obligations, you likely will not succeed on an anti-SLAPP motion. See Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 942 (Mass. 1998).
Be aware that the statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if aimed at influencing government policy or building support for a campaign to influence government policy.
However, an important Massachusetts Supreme Judicial Court case suggests that reporters who publish objective, factual news accounts won't qualify for the protections of the anti-SLAPP law, even if those accounts relate to matters and issues under review by government bodies and are aimed at enlisting public participation around those issues. See Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010). In Fustolo, a real estate developer sued a reporter for a community newspaper for defamation over articles reporting on his properties and community opposition to his development plans. The complaint alleged that the articles caused "[w]idespread opposition . . . in connection with [his] development plans and variance petition" and "[a]s a direct and proximate result, [h]e was compelled to withdraw the application for variances prior to a hearing scheduled to take place before the Boston Board of Appeal on July 25, 2006.
Despite this connection with government scrutiny of the plaintiff's development plans, the Massachusetts SJC held that the articles did not qualify as "petitioning activity" on the reporter's "own behalf." Among other factors, the court noted that the articles in question were objective and did not reflect the reporter's personal opinions. It also determined that the reporter's subjective personal interest in the development issues she wrote about was not relevant to determining whether the articles themselves were petitioning activity. The court noted, however, that merely receiving compensation for her work did not deprive the reporter of the protections of the Massachusetts anti-SLAPP law.
Another potentially important case for website operators is MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003). In this case, Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. The site functioned as an interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars. It included information on education reform, a citizen letters section, cartoons, quotes, a link inviting public participation by email, and satirical articles. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a "dictionary entry" for the term "Nazi" that referenced MacDonald. A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community."
The Supreme Judicial Court's decision in Fustolo v. Hollander, discussed above, casts substantial doubt on the continued validity of MacDonald v. Paton, at least to the extent it suggested that providing a forum for others to speak could be "petitioning activity" on one's "own behalf" under the Massachusetts anti-SLAPP law.
If you are sued in federal court in Massachusetts, you might not be able to invoke the anti-SLAPP statute. Some federal courts in Massachusetts have held that the anti-SLAPP statute is a procedural rule that is inapplicable in federal court. See, e.g., Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312, 316 (D. Mass. 2003). Other courts might disagree, however.
The Massachusetts anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition.
If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to dismiss under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a special motion to dismiss, the court must hear and rule on the motion "as expeditiously as possible." M.G.L. c. 231, § 59H. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In ruling on a motion to dismiss, a court will first consider whether you have established that the lawsuit arises solely out of your right to petition (defined above). Assuming you can show this, the court will then require the plaintiff to introduce evidence showing that the "exercise of [your] right to petition was devoid of any reasonable factual support or any arguable basis in law" and that your acts caused actual injury. M.G.L. c. 231, § 59H. If the plaintiff cannot show this, the court must grant your motion to dismiss. On the other hand, if the plaintiff can make this showing, the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
If you prevail on a motion to dismiss under the Massachusetts anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. M.G.L. c. 231, § 59H.
If you succeed in fending off a SLAPP in Massachusetts, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Massachusetts does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.
If you file a special motion to dismiss under Massachusetts' anti-SLAPP law and the court denies the motion, you have an immediate right to appeal the denial. See Fabre v. Walton, 436 Mass. 517 (2002).
Note: This page covers information specific to Michigan. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
On August 19, 2010, the Michigan House of Representatives passed House Bill No. 5036 which provides that if a defendant in a lawsuit makes a motion to dismiss, the court shall dismiss the case if either of the following applies:
a. The action was based on the defendant's exercise of constitutionally protected right to petition the government and the communication was aimed at achieving some governmental or electoral action, result, or outcome, or
b. The action is based on the defendant's exercise of the constitutional right to free speech.
The plaintiff can avoid dismissal of the complaint if they can make a prima facie case that the purpose of the lawsuit is not to harass or intimidate or interfere with free speech and one or both of the following:
a. The defendant made a statement that was false with reckless disregard for the truth or knowing it was false, or
b. The defendant revealed something in the communication that they were prohibited by law from revealing.
As of February 2011, it does not appear that the state senate had passed the bill or that it has otherwise become law in Michigan. If you have information about the legislation, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.
If you succeed in fending off a SLAPP-type lawsuit in Michigan,you may be able to bring a claim of malicious prosecution against the original plaintiff. While Michigan does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Nevada. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
Nevada's Anti-SLAPP statute is codified as Nev. Rev. Stat. 41.635-70. There is little case law interpreting it. However, Nevada courts have held that Nevada's Anti-SLAPP statute should be read similarly to California's, upon which it is based.
According to John v. Douglas County School District, Nevada's anti-SLAPP statute bars claims from people who attempt to abuse other citizen's rights who attempt to petition the government and allows for claims against citizens who do not petition the government in good faith. The purpose is to prevent citizens from being the subject of costly litigation in an attempt to abridge their right to free speech under both the Nevada and U.S. Constitutions. John, 219 P.3d at 1282. A "good faith communication" includes:
The types of suits that have been successfully dismissed under Nevada's Anti-SLAPP statute are:
Once filed, the special motion to dismiss is considered at the summary judgment standard, and all discovery will be stayed. A judge will rule on the motion within 30 days. However, if the motion is denied, you do not have the ability to file for an interlocutory appeal. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir. 2012).
It is important to note that Nevada's Anti-SLAPP statute is a "free from judgment" statute, not a "free from litigation" statute. The Ninth Circuit recently interpreted the statute in a similar way as California's statute, stating that those who prevail on an anti-SLAPP motion are immune from civil liability, but are not immune from a lawsuit. Metabolic Research, 693 F.3d at 802. Those defendants facing litigation can request fees and costs at the conclusion of the case. Id.
The Citizen Media Law Project would like to thank the Randazza Legal Group for preparing this section. The contents of this page should not be considered to be legal advice.Note: This page covers information specific to New Jersey. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
New Jersey does not have an anti-SLAPP statute. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.
Although New Jersey has no anti-SLAPP statute, New Jersey courts have shown concern about the impact of SLAPPs. As a result, they have allowed a defendant who successfully defeats a SLAPP-type suit to seek damages from the SLAPP filer on a claim of malicious use of process, akin to California's "SLAPPback" claim. Thus, if you successfully fend off a SLAPP-type suit in New Jersey, you may want to consider a malicious use of process claim. If you are interested in this route, you should consult an attorney to see whether such a claim may be viable in your case.
New Jersey's malicious use of process claim consists of four elements that you must prove:
You could establish the first and third element by showing that you succeeded in getting a SLAPP-type suit dismissed, assuming that the court indicated in the process that the SLAPP filer's claim was lacking legal and/or factual bases. You could prove malice by showing that the SLAPP filer sued you in retaliation for your exercise of your right of petition or free speech. See LoBiondo v. Schwartz, 323 733 A.2d 516, 534 (N.J. Super. Ct. App. Div. 1999). Lastly, New Jersey courts have ruled that being SLAPPed constitutes a "special grievance." See Baglini v. Lauletta, 768 A.2d 825, 836-37 (N.J. Super. Ct. App. Div. 2001); LoBiondo, 733 A.2d at 534.
New Jersey courts have not yet applied the malicious use of process claim to SLAPPs brought against bloggers or non-traditional journalists. Given the language the courts have used in describing the threat of SLAPPs to citizens' rights of petition and free speech, however, it seems entirely possible that the courts would be willing to extend the claim to these types of SLAPPs.
Note: This page covers information specific to New York. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
New York's anti-SLAPP laws, found at N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h), offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body (like zoning permits) over efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission. The statute does not protect "free speech" in the abstract; it only protects bloggers, non-traditional journalists, and other online publishers when they address this narrow class of issues (i.e., the granting or denial of a public permit or application).
To use New York's anti-SLAPP law, you must show two things. First, you must show that the plaintiff suing you is a "public applicant or permittee." Second, you must show that the plantiff's claim against you is an "action involving public petition and participation."
The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.
The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.
The New York anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you by a public applicant or permittee over your efforts to report on, comment on, challenge, or oppose an application to the government.
If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may be able to recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
In ruling on a motion to dismiss under the anti-SLAPP laws, a New York court will determine whether the plaintiff is a "public applicant or permittee" and whether the lawsuit is an "action involving public petition and participation," as described above. If you can establish these two things, then the court will require the plaintiff to demonstrate that its lawsuit "has a substantial basis in law." If the plaintiff fails to do so, then the court will grant your motion and dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
Note that, unlike in many states, New York's anti-SLAPP motion does not halt discovery (i.e., fact gathering for trial). Thus, you may incur additional litigation expenses while the court hears and decides your motion.
If you prevail on a motion to dismiss under the New York anti-SLAPP law, the court may award you one or more of the following kinds of damages: costs and attorneys' fees, other compensatory damages, and punitive damages. To receive costs and attorneys' fees, you must show that the plaintiff's lawsuit against you lacked a basis in fact and law. To get compensatory damages (i.e., damages that compensate you for any other harm you suffered as a result of the SLAPP), you must also show that the plaintiff was maliciously attempting to impair your right to free speech or petition. Further, if you can show that if that the attempt to impair your rights was the only reason the plaintiff sued you, you may be entitled to punitive damages.
Note that even if you are able to establish that you meet the requirements for any or all of the types of damages listed above, the court does not have to award those damages. All anti-SLAPP damages, including costs and attorneys' fees, are awarded at the court's discretion under New York law.
Note: This page covers information specific to North Carolina. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in North Carolina. If you know about an anti-SLAPP law in North Carolina, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.
If you succeed in fending off a SLAPP-type lawsuit in North Carolina, you may be able to bring a claim of malicious prosecution against the original plaintiff. While North Carolina does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Ohio. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Ohio. If you know about an anti-SLAPP law in Ohio, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.
If you succeed in fending off a SLAPP-type lawsuit in Ohio, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Ohio does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Pennsylvania. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
Pennsylvania has a narrow anti-SLAPP statute, found at 27 Pa. Cons. Stat. §§ 7707, 8301-05, that only applies to those petitioning the government over environmental issues. While the statute does not protect "free speech" in the abstract, bloggers and non-traditional journalists who address environmental issues may be able to take advantage of it. The statute provides for a special motion and hearing to establish entitlement to immunity. If a court rules in your favor on this motion, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
To challenge a lawsuit as a SLAPP in Pennsylvania, you need to show that the plaintiff is suing you over an "an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation." The statement must also be "aimed at procuring favorable governmental action."
Pennsylvania courts have interpreted this language to encompass both direct communications with the government and statements to third parties that are ultimately aimed at procuring favorable government action on an environmental issue. Thus, statements calling government or public attention to any alleged environmental violation or seeking to influence the government in its consideration or review of an environmental issue are protected. Some examples of protected communications made to non-government actors include: "a letter to the editor of a local newspaper expressing concern about the possibility of contamination at a proposed development, a statement made to a newspaper reporter about the possibility of contamination at a proposed development, or a signboard which protests the development of a wetland." Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424, 433 n.11 (Pa. Cmmw. Ct. 2005).
There are, however, exceptions to this immunity, spelled out in 27 Pa. Cons. Stat. § 8302 (b). You are not entitled to immunity if:
The Pennsylvania anti-SLAPP statute gives you the ability to file a special motion requesting a determination of immunity under the Act. After you file the motion, the court must hold a hearing to make this determination.
At the hearing, the court will inquire into whether the lawsuit is based on "a communication to a government agency relating to enforcement or implementation of an environmental law or regulation" (defined above). Assuming you can show this, the court will require the plaintiff to introduce evidence showing that your statements fall into one of the three exceptions outlined above. If the plaintiff cannot do this, the court will dismiss the lawsuit against you. On the other hand, if the plaintiff's case is strong, the court will deny your motion. If the court denies your motion, you may appeal the judge's ruling immediately, and the plaintiff will not be able to engage in "discovery" (i.e., fact gathering for trial) until after the appeals court decides the appeal.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
If you prevail on your motion under the Pennsylvania anti-SLAPP statue, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. If you are only partially successful, the court may award you either full or partial fees and costs, at its discretion. See 27 Pa. Cons. Stat. § 7707.
If you succeed in fending off a SLAPP in Pennsylvania, you may be able to bring a claim of malicious use of civil process against the SLAPP filer. While Pennsylvania does not explicitly recognize a "SLAPPback" claim, the elements of this claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
The Texas Citizens Participation Act, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys' fees, court costs, and possibly punitive damages against the party that filed the lawsuit.
The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a "matter of public concern"; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests."
To challenge a lawsuit under the Citizens Participation Act, you must show that it is based on your act or acts of "communication" (defined as the "making or submitting" of any "statement or document in any form or medium") in connection with your rights of association, petition, or free speech. The statute broadly defines these rights:
Although dependent on your subject matter, the right of free speech is the section of the statute that will most likely apply to statements made online. The statute defines a "matter of public concern" as as issue related to health or safety; environmental, economic, or community well-being; the government; a public figure or official; or a good, product or service in the marketplace. If a lawsuit against you involves online statements on any of these topics, the statute may provide you relief.
The Act specifically excludes any "enforcement actions," such as criminal prosecutions, brought in the name of the state of Texas, as well as any legal actions against people "primarily engaged in the business of selling or leasing goods or services," if the statement at the heart of the lawsuit arises out of that sale and is directed at actual or potential customers. The Act further excludes lawsuits related to bodily injury and wrongful death claims.
You must file a special motion to dismiss under the Citizens Participation Act within 60 days of being served with the lawsuit. A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Upon learning of a lawsuit against you that you think may be a SLAPP, you should consult an attorney; while legal help is expensive, if your motion to dismiss succeeds the court will grant you attorneys' fees.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to dismiss, the court must rule on your motion within thirty days, unless the court's docket is overbooked. Once your motion to dismiss is filed, discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion – that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions.
The court may allow some limited discovery as long as it is relevant to the motion to dismiss, but the allowance of such discovery does not extend the time for the court to rule on the motion. In the first appellate decision from Texas interpreting the Citizens Participation Act, the Court of Appeals for the Fifth District held that when a trial court judge deferred ruling on anti-SLAPP motion for more than thirty days after it was filed in order to allow limited discovery to take place, the lower court constructively denied the motion and the defendant had an immediate right to appeal at the end of the thirty-day period. Avila v. Larrea, No. 05-11-01637-CV, slip op. at 11-12 (Tex. App. Dec. 18, 2012).
Texas courts follow a two-step process when deciding a motion to dismiss under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show “by a preponderance of the evidence” that the plaintiff's claim is "based on, relates to, or is in response to" your exercise of the speech/petition/association rights described above. Once you successfully show that your online writing involves the exercise of those rights, the burden shifts to the plaintiff for step two. The plaintiff must establish "by clear and specific evidence" a prima facie case for each part of his or her original claim; if the plaintiff fails to show this, the court will dismiss the claim.
Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.
If you prevail, in whole or in part, in your motion to dismiss under the Citizens Participation Act, the court "shall" award you "court costs, reasonable attorney's fees, and other expenses. . . as justice and equity may require." The court "shall" further award you damages from the plaintiff "sufficient to deter the party who brought the legal action from bringing similar actions." In short, the court will tailor your total monetary award to suit both your costs and the specific attributes of the individual plaintiff.
Note that if the court finds that your motion to dismiss under the Act is "frivolous or solely intended to delay," the judge "may" award court costs and attorney's fees to the plaintiff; this is permissive, not required, and the plaintiff may not recover further punitive damages.
If you succeed in fending off a SLAPP lawsuit in Texas, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Texas does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Virginia. If you know about an anti-SLAPP law in Virginia, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.
If you succeed in fending off a SLAPP-type lawsuit in Virginia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Virginia does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to Washington. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use the Washington Act Limiting Strategic Lawsuits Against Public Participation, found at Wash. Rev. Code § 4.24.525, to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike any claim against you that is based on your public statements about an issue of public concern. The anti-SLAPP law allows for a stay of all discovery, pending hearings, and motions, with certain exceptions. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees, litigation costs, and ten thousand dollars in damages.
To challenge a lawsuit under Washington's anti-SLAPP act, you must show that the claim(s) against you is based on your written or spoken acts "involving public participation and petition". Washington defines statements involving "public participation and petition" in 5 ways:
Wash. Rev. Code § 4.24.525 (4)(a-e). As an online publisher, you are most likely to rely on the fourth category above. It applies to written statements in a public forum on an issue of public concern.
Washington courts have not yet explicitly ruled on whether the Internet is a public forum; however, Washington's anti-SLAPP law is explicitly modeled on California's statute, and federal courts in Washington have looked to California law in interpreting Washington's statute. In California, a publicly accessible website is considered a public forum. While California law is not binding on Washington courts, it might be persuasive.
Many different kinds of statements may relate to an issue of public concern. The statute itself does not define "public concern," but courts in Washington have found that the national health care crisis, or internal happenings in a fire department qualify. Here too, California law can be persuasive to Washington courts; see CMLP's page on California's anti-SLAPP statute for more examples of protected, and unprotected, speech.
Washington's law explicitly does not apply to prosecutions brought by the state. Wash. Rev. Code § 4.24.525 (3).
The Washington anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. (Note that if the plaintiff serves you with an amended complaint, the 60-day deadline will run from service of the amendment.) A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to strike, the court must hold a hearing on your motion within thirty days, unless the court's docket is overbooked. Until your motion is decided, all discovery and other hearings will be stayed (unless the plaintiff can show good cause for continuing some discovery).
Washington courts follow a two-step process when deciding a motion to strike under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show by a preponderance of the evidence that the plaintiff's claim is based on your speech protected as involving public participation. (See above.) Once you successfully show that your online writing involves public participation, the burden shifts to the plaintiff for step two. The plaintiff must clearly show “by clear and convincing evidence a probability” of winning the lawsuit; if the plaintiff fails to show this, the court will dismiss the claim.
Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.
If you win your motion to strike under Washington's anti-SLAPP statute, the court will dismiss the lawsuit (or the parts of the lawsuit found to be SLAPPs). You will also be entitled to receive your attorneys' fees, your court costs, and an automatic statutory damage award of $10,000. The court may also sanction the plaintiff or the plaintiff's attorney.
Normally, nothing happens if you lose your motion to strike (other than the lawsuit continuing against you). However, if the court finds that your motion under the anti-SLAPP law was entirely frivolous or solely intended to delay the lawsuit, the court can award attorneys' fees, court costs, and an automatic statutory damage award of $10,000 to the plaintiff.
If you succeed in fending off a SLAPP lawsuit in Washington, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Washington does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Note: This page covers information specific to The District of Columbia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
The District of Columbia Anti-SLAPP Act of 2010, D.C. Code 16-5502, allows you to counter a SLAPP suit against you based on your statements involving matters of public concern by filing a special motion to dismiss. The Act also allows for the stay of discovery proceedings when the special motion to dismiss is pending, with certain exceptions. Finally, if a party to a SLAPP suit seeks your personal identifying information, the Act allows you to make a special motion to quash the discovery order, request, or subpoena.
The D.C. Anti-SLAPP Act of 2010 applies to suits based on written or oral statements regarding (1) an issue being considered by a governmental body; (2) governmental or official proceedings; or (3) issues of public interest made in a public forum. It also applies to suits concerning any expressive conduct involving petitioning the government or communicating with the public regarding issues of public interest. Certain commercial statements are specifically outside the protections of the Act.
The D.C. Anti-SLAPP statute has been invoked in several cases in the District of Columbia. If you know about any additional relevant cases, please contact us.
To challenge a lawsuit under the D.C. Anti-SLAPP Act, you must show that it is based on your act or acts "in furtherance of the right of advocacy on issues of public interest." It defines "an act in furtherance of the right of advocacy on issues of public interest" as
(A) Any written or oral statement made:
(i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or(B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.
(ii) In a place open to the public or a public forum in connection with an issue of public interest; or
The Act defines an "issue of public interest" as "an issue related to health or safety; environmental, economic, or community well being; the District government; a public figure; or a good, product or service in the market place." The Act specifically excludes "private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance" from the definition of an "issue of public interest."
Similarly, the D.C. Anti-SLAPP statute specifically does not apply to suits which are:
brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is:
(1) A representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person's goods or services; and
(2) The intended audience is an actual or potential buyer or customer.
Until judicial guidance is available, the scope of commercial statements excluded from the protection of the protection of the Act will remain subject to interpretation.
In addition to allowing a defendant in a SLAPP lawsuit to seek dismissal of the suit, the D.C. Anti SLAPP statute also provides some protections if your personal identifying information is sought, "pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest." On its face, this provision is not limited to parties to the lawsuit, and thus might potentially be used by witnesses or other targets of discovery that are not parties.
As used in this provision, "an act in furtherance of the right of advocacy on issues of public interest," has the same definition as discussed above.
"Personal identifying information" includes information such as your name, address, and social security number. More specifically, the Act defines "personal identifying information" by reference to section 127a(3) of the District of Columbia Theft and White Collar Crimes Act of 1982 (D.C. Law 4-164, D.C. Code § 22-3227.01(3)). By this reference, "personal identifying information" also includes information such as financial account numbers, government identification numbers (like those on driver's licenses and passports), signatures, biometric data, and employment history.
The D.C. Anti-SLAPP Act of 2010 gives you the ability to file a special motion to dismiss within 45 days after service of the claim. (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a special motion to dismiss under the Anti-SLAPP Act.) The Superior Court of the District of Columbia has denied at least one special motion to discuss under the D.C. Anti-SLAPP Act for failing to file the motion in a timely manner, although the court noted that, in other cases, "the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty five day framework." Newmyer v. Sidwell Friends School, No. 2011 CA 003727 M (D.C. Super. May 22, 2012); see also Sherrod v. Breitbart, 843 F. Supp. 2d 83, 86 (D.D.C. 2012) (denying defendant's motion to dismiss under the D.C. Anti-SLAPP Act in part because the motion to dismiss was filed more than forty five days after service of the claim).
The special motion to dismiss must make a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion will be granted unless the plaintiff (the party responding to your motion) shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to dismiss will be denied.
The court must hold an "expedited hearing" on the special motion to dismiss and issue a ruling "as soon as practicable" after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice, meaning that the plaintiff cannot refile her claim against you.
After you file your special motion to dismiss, the Act provides that discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions. However, if it "appears likely" that targeted discovery will enable the plaintiff to defeat the special motion to dismiss and that the discovery will not be unduly burdensome, the court may order "specialized discovery." The court's order may be conditioned upon the plaintiff paying any expenses you incur in responding to such discovery.
In addition to creating the special motion to dismiss, the Act also allows a person whose personal identifying information is sought in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest to file a special motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.
To succeed in your motion to quash, you must make a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion to quash will be granted unless the plaintiff shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to quash will be denied.
If your special motion to dismiss is denied, you may want to appeal. The District of Columbia Court of Appeals has held that immediate appeal is not available for denials of a special motion to dismiss under the D.C. Anti SLAPP statute. Newmyer v. Sidwell Friends School, No. 2011 CA 3727 (D.C. Dec. 5, 2012). That means that you cannot appeal the denial immediately when the denial order is entered, but rather must wait until the end of the entire trial to appeal the denial of your special motion to dismiss. The issue of whether immediate review is available to appeal denials of special motions to dismiss under the Act is at issue in a case pending before the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart, No. 11-7088.
At least one federal court has held that the D.C. Anti-SLAPP Act does not apply retroactively to lawsuits filed before the effective date of the Act, March 31, 2011, although the case is currently on appeal to the United States Court of Appeals for the District of Columbia Circuit. See Sherrod v. Breitbart, 843 F. Supp. 2d 83, 84 85 (D.D.C. 2012). However, the Superior Court of the District of Columbia has held in at least one case that the Act applies retroactively. Lehan v. Fox Television Stations, Inc., No. 2011 CA 004592 B, 2011 D.C. Super. LEXIS 14 (D.C. Super. Nov. 30, 2011).
If you prevail, in whole or in part, on your special motion to dismiss or special motion to quash, the Act provides that the court "may" award you "the costs of litigation, including reasonable attorney fees." Note that the statutory language is permissive; while the court may award you these costs, it is not required to do so. The Act also restricts the court's ability to award the plaintiff attorneys' fees and costs if you do not prevail. In that case, the Act allows the court to award the plaintiff costs only if it finds that your motion is "frivolous" or "solely intended to cause unnecessary delay." The Superior Court of the District of Columbia has awarded attorneys' fees to the plaintiff in at least one case in which it found the special motion was frivolous, i.e. "‘wholly lacking in substance' and not ‘based upon even a faint hope of success on the legal merits.'" Newmyer, No. 2011 CA 003727 M (quoting In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005)).
If you succeed in fending off a SLAPP lawsuit in the District of Columbia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While the District of Columbia does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
The United States District Court for the District of Columbia has issued conflicting opinions on whether the D.C. Anti-SLAPP Act applies in federal court in lawsuits brought under the court's diversity jurisdiction. Cf. Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does apply to federal diversity cases); 3M Co. v. Boulter, 842 F. Supp. 2d 85, 111 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does not apply to federal diversity cases); 3M Co. v. Boulter, No. 11-cv-1527 (RLW), 2012 U.S. Dist. LEXIS 151231 (D.D.C. Oct. 22, 2012) (same). Several cases that may resolve this issue are currently pending on appeal before the United States Court of Appeals for the District of Columbia Circuit.
The Citizen Media Law Project would like to thank Caitlin Vogus for her contributions to this article, and for her extensive work on the Legal Guide over the past several years.