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.
Activities Covered By The Illinois Anti-SLAPP Statute
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:
- If the defendant's conduct was "not genuinely aimed at procuring favorable government action, result, or outcome," the CPA does not apply. 735 Ill. Comp. Stat. 110/15. This test focuses on the defendant's conduct.
- The second test looks at the plaintiff's intent in bringing the lawsuit. According to the Illinois court in Sandholm, "if the plaintiff's intent in bringing the suit is to recover damages for alleged defamation [or other intentional torts] and not to stifle or chill defendants' rights of petition, speech, association, or participation in government," the CPA does not apply. Sandholm, at ¶ 42. Later in the decision, the Illinois court summarized its ruling: "If a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP . . . plaintiff's suit would not be subject to dismissal under the [CPA]." Id. at ¶ 53.
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.
How To Use The Illinois Anti-SLAPP Statute
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.
What Happens If You Win A Motion To Dismiss
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.