The
State of State Anti-Slapp Laws
By Catherine
Maxson
The First Amendment's freedom of speech
and right to petition can be rendered meaningless if their exercise
subjects the speaker to harassment. Meritless litigation is one
technique used by those wishing to silence speakers or petitioners.
The time and resources required to mount a successful defense, even
to frivolous claims, is enough to force many speakers to think twice
before continuing to express themselves.
Recognizing the problem posed by these
harassing lawsuits, commonly referred to as Strategic Litigation
Against Public Participation ("SLAPP"), at least nine states have
enacted anti-SLAPP statutes.1
These statutes can provide valuable protection to those exercising
their First Amendment freedoms, such as broadcaster and publishers
whose business is speech. While all these anti-SLAPP statutes provide
a cause of action for targets of SLAPPs, the ambit of their protection
varies as do the types of remedies available. A comparison of the
statutes in California, New York, and Washington, and cases decided
under them, demonstrates the differences.
The California Experience
Since its enactment in 1992, the California
anti-SLAPP statute has protected all who are sued as a result of "participation
in matters of public significance."2
The statute creates a special motion for a defendant subjected to
a SLAPP that stays all discovery until the motion is ruled upon and
entitles successful movants to recover attorneys' fees and costs.3
When faced with a motion under the anti-SLAPP statute, a plaintiff
must show a probability of success on the merits to avoid dismissal.4
Numerous types of defendants, including members of the media, have
benefited from California's anti-SLAPP statute.5
Although a few courts called into question whether the statute covered
such a variety of defendants,6
recent amendments to the statute and court decisions have confirmed
that the statute is to receive a broad construction.
In 1997, the California legislature amended the anti-SLAPP statute
in two significant ways. First, the statute now specifically states
that it "shall be construed broadly."7
Second, the legislature added an umbrella category to the representative
list of activities receiving the statute's protections, specifically
stating that the law applies to "any other conduct in furtherance
of the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue
of public interest."8
The California Supreme Court's Briggs v. Eden Council for Hope
& Opportunity9
decision is consistent with the legislature's intent that the anti-SLAPP
statute receive broad construction. The Briggs court held that defendants
filing motions of dismissal under the anti-SLAPP statute do not
have to demonstrate that their speech activities directly concerned
an issue of public significance; it is enough that the activities
took place in connection with, or arose from, any public proceeding.
Quoting Braun v. Chronicle Publishing Co., the court held
that it is "'the context or setting itself that makes the issue
a public issue.'"10
The court concluded that the "Legislature's stated intent is best
served, therefore, by a construction of [the anti-SLAPP statute]
that broadly encompasses participation in official proceedings,
generally, whether or not such participation remains strictly focused
on 'public' issues."11
The definition of protected activities under the anti-SLAPP statute
received an addition gloss by the California courts in Sipple
v. Foundation for National Progress.12
Donald Sipple, a well-known political consultant, sued the magazine
Mother Jones for defamation on account of an article it published
about Sipple's custody fight with his first wife which recounted
the accusations of physical abuse made by his first and second wives.
The court affirmed the trial court's grant of the magazine's motion
to dismiss under the anti-SLAPP statute, summarily rejecting the
contention that the media cannot invoke the anti-SLAPP statute.13
The court concluded that the article concerned a "public issue"
in two ways. First, as the custody dispute was a judicial proceeding,
any report on or discussion of statements made within such a context
falls within the statute's purview. Second, Sipple had defined domestic
violence as an issue of national concern in campaigns throughout
his career, rendering accusations that Sipple himself was an abuser
a public issue.14
In light of the 1997 amendments to the statute
and the Briggs and Sipple decisions, all California defendants sued
in state or federal court15
on account of participating in or reporting on judicial, legislative,
or other official proceedings or public issues, can rest assured
that they fall within the sweep of the anti-SLAPP statute.16
The New York Experience
In contrast to California's broad protection for speech and petitioning
activities relating to "public issues," the New York anti-SLAPP
law applies to more limited circumstances. Only suits brought by
"public applicant[s] or permittee[s]," a narrowly defined group,17
qualify as SLAPP suits under the New York statute.
Two decisions demonstrate the narrow class of cases which qualify
as SLAPP suits under New York law. In Gill Farms Inc. v. Darrow,18
the defendant had vigorously protested the plaintiff's use of aerial
insecticides, including filing complaints with governmental officials,
prompting the plaintiff to sue the defendant for a variety of torts.
The court denied the defendant's motion to dismiss under the anti-SLAPP
statute since the plaintiff did not possess a permit for aerial
spraying - the plaintiff was not a "permittee." Similarly, the Bell
v. Little19
court held that a defamation claim arising from the defendant's
allegedly false and misleading statements written on a sidewalk
did not affect the defendant's right of petition before public agencies
and thus was not subject to dismissal under the New York anti-SLAPP
law.
If the plaintiff is a "public applicant or permittee," then the
New York statute does broadly define the category of speech activities
which receive its protections. The statute shields all who "report
on, comment on, rule on, challenge or oppose" permit applications,
regardless of whether the speaker is an individual, member of the
media, or other corporate entity. For those who can invoke the anti-SLAPP
law, New York law provides a quick means of disposing of the harassing
suit. Upon the filing of a motion to dismiss, SLAPP plaintiffs are
required to show that their cause of action "has a substantial basis
in law or is supported by a substantial argument for an extension,
modification or reversal of existing law."20
Without the anti-SLAPP statute, plaintiffs can overcome a motion
to dismiss by merely showing that they had a reasonable basis for
their claims.21
This quick dismissal of harassing lawsuits is an important protection
of First Amendment rights, but it is not enough. For example, New
York's ,anti-SLAPP statute does not enable defendants to immediately
halt all discovery. As a result, a plaintiff can prolong the harassment
of a defendant by involving the defendant in expensive and time-consuming
discovery. Furthermore, the statute gives courts discretion regarding
whether to award attorneys' fees and costs to defendants who succeed
in getting the case dismissed as a SLAPP,22
in contrast to California where such an award is mandatory. The
New York anti-SLAPP law does, however, enable defendants to recover
other compensatory damages upon "an additional demonstration" that
the plaintiff sued to harass or intimidate the defendant, and even
authorizes punitive damages if the defendant can show that harassment
and intimidation were the sole purposes of the litigation.23
The Washington Experience
Like New York, the Washington anti-SLAPP statute only applies to
permitting activities. Unlike New York, however, Washington only
protects those directly involved in reporting information to governmental
bodies, and thus rarely will apply to media defendants. The statute
grants immunity from civil liability to a "person who in good faith
communicates a complaint or information to any agency of federal,
state, or local government regarding any matter reasonably of concern
to that agency."24
If such persons are sued on account of their activities, the statute
provides them with an affirmative defense, not a special motion
to dismiss, and entitles them to costs and attorneys' fees incurred
in establishing this defense.25
Additionally, the State or local government which received the
information giving rise to the lawsuit can intervene to defend against
the SLAPP. Like private citizens, the government can recover its
costs and attorneys' fees incurred in establishing the statute's
defense; however, if the government fails to prove the defense,
the plaintiff can recover its costs and attorney's fees, limiting
the government's incentive to intervene.26
In light of the limited nature of the statute,
it is not surprising that only two reported cases have discussed
it. In Gilman v. MacDonald,27
a developer sued a homeowner for defamation because the homeowner
informed government officials that the developer was illegally clearing
trees.
Neither the trial court nor the appellate
court questioned the statute's application under these circumstances;
instead the courts differed on what a plaintiff had to prove to
overcome a SLAPP defendant's defense. The court of appeals held
that, as in common-law defamation actions, a plaintiff has to show
by clear and convincing evidence that a defendant knew of the falsity
of his statements or made the statements in reckless disregard thereof.28
In Dang v. Ehredt29
a patron sued her bank after a bank employee called police and reported
his suspicion that she was attempting to cash a counterfeit check.30
The customer sought to avoid the anti-SLAPP statute by phrasing
her claim as one for false arrest and negligent investigation prior
to the call to police. The appellate court rejected this effort,
holding that all of the wrongs alleged were "based on" the call
to police. As the plaintiff could not meet the actual malice test
established in Gilman, the bank and its employees were held
immune and were granted summary judgment.
Because Washington's anti-SLAPP statute
does not create a motion to dismiss or an affirmative claim for
those subjected to meritless litigation on account of their activities,
SLAPP defendants in Washington are particularly susceptible to drawn
out, expensive discovery. To make matters worse, Washington's malicious
prosecution statute,31
which does provide a cause of action, receives a narrow interpretation.
To succeed on a malicious prosecution claim, the litigant has to
show seizure of his person or his property, a kind of injury that
does not include the legal costs or emotional distress that arise
from defending oneself against frivolous claims.32
Conclusion
As this brief survey demonstrates, states
have begun to recognize the danger that frivolous litigation poses
for First Amendment freedoms. This survey also shows, however, that
the response to this danger has not been uniform, and in fact leaves
many exposed to the expense and hassle of meritless claims solely
on account of their exercise of their speech rights. Although the
statute California and in several other states offer media defendants
a chance to dispatch with frivolous lawsuits quickly and effectively,
other states apply the anti-SLAPP remedy only in limited circumstances
that will rarely, if ever, assist publishers or broadcasters.
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Endnotes
1. Cal. Code Civ. Proc. § 425.16; Del. Code
Ann. tit. 10, §§ 8136-38; Ga. Code Ann. § 9-11-11.1;
Mass. Gen. Laws Ann. ch. 231, § 59H; Minn. Stat. Ann. §§
554.01-.05; Nev.Rev. Stat. §§ 41.640-.670; N.Y. Civ. Rights
Law §§ 70-a, 76-a, and N.Y. C.P.L.R. §§ 3211(g),
3212(h); R.I. Gen. Laws §§ 9-33-1 to 4; Wash. Rev. Code
§ 4.24.500-.520. Ten other states are considering passing their
own anti-SLAPP statutes. See Gail Diane Cox, Pushing the SLAPP
Envelope, NATIONAL LAW JOURNAL (April 19, 1999).
2. Cal. Code Civ. Proc. § 425.16(a).
3. Id. § 425.16(c), (g).
4. Id. § 425.16(b).
5. See, e.g., Sipple v. Foundation for Nat'l
Progress, 71 Cal. App. 4th 226, 83 Cal. Rptr.2d 677 (1999) (dismissed
a defamation claim against magazine arising from an article about
a political consultant and his custody battle); Braun v. Chronicle
Publ'g Co., 52 Cal. App. 4th 1036, 61 Cal. Rptr. 2d 58 (1997)
(newspaper sued for libel and other torts on account of a series
of articles about an investigation by the State Auditor); Averill
v. Superior Court, 42 Cal. App. 4th 1170, 50 Cal. Rptr. 2d 62
(1996) (homeowner sued by a battered women's shelter for speaking
out against the shelter's use of a home in herneighborhood); Lafayette
Morehouse v. Chronicle Publ'g Co., 37 Cal. App. 4th 855, 44
Cal. Rptr. 2d 46 (1995) (newspaper sued for libel by a university
over the paper's coverage of public hearings regarding the university);
Dixon v. Superior Court, 30 Cal. App. 4th 733, 36 Cal. Rptr.
2d 687 (1994) (professor sued after criticizing a geological surveyor).
6. Linsco/Private Ledger,
Inc. v. Investors Arbitration Servs., Inc., 50 Cal. App. 4th
1633, 58 Cal. Rptr. 2d 613 (1996); Zhao v. Wong, 48 Cal.
App. 4th 1114, 55 Cal. Rptr. 2d 909 (1996).
7. Cal. Code Civ. Proc. § 425.16(a).
8. Id. § 425.16(e).
9. 969 P.2d 564, 19 Cal. 4th 1106, 81 Cal. Rptr.
2d 471 (1999).
10. 969 P.2d at 570 (quoting Braun, 52 Cal.
App. 4th at 1047).
11. Id. at 571.
12. 71 Cal. App. 4th 226, 83 Cal. Rptr. 2d 677(1999).
13. Id. at 240.
14. Id. at 237-40
15. The Ninth Circuit Court of Appeals recently
held that the anti-SLAPP statute applies to proceedings in federal
court applying California law. United States ex rel. Newsham
v Lockheed Missiles & Space Co., 171 F.3d 1208, 1218 (9th Cir.
1999).
16. The Georgia, Minnesota, and Rhode Island statutes
cited in note 1 appear to offer broad protection of First Amendment
rights like California's statute.
17. N.Y. Civ. Rights Law
§§ 70-a(1), 76-a(1)(a). The statute defines a "public
applicant or permittee" as "any person who has applied for or obtained
a permit, zoning change, lease, license, certificate or other entitlement
for use or permission to act from any government body." Id.
§ 76-a(1)b.
18. 682 N.Y.S.2d 306 (App. Div. 1998).
19. 673 N.Y.S.2d 402 (App. Div. 1998).
20. N.Y. C.P.L.R. § 3211(g); see also id.
§ 3212(h) (imposing a similar burden on plaintiffs if the SLAPP
defendant moves for summary judgment).
21. See Harfenes v. Sea Gate Ass'n, Inc.,
647 N.Y.S.2d 329, 332 (Sup.Ct. 1995).
22. N.Y. Civ. Rights Law § 70-a(1)(a) ("[C]osts
and attorney's fees may be recovered.") (emphasis added); West
Branch Conservation Ass'n v. Planning Bd., 636 N.Y.S.2d 61,
63 (App. Div. 1995).
23. N.Y. Civ. Rights Law §§ 70-a(1)(b),(c).
24. Wash. Rev. Code § 4.24.510.
25. Id.
26. Id. § 4.24.520.
28. Id. at 738-39.
29. 95 Wash. App. 670 (1999)
30. The bank was represented by John Parnass and
Michele Earl-Hubbard of Davis Wright Tremaine.
31. Wash Rev. Code §4.24.350.
32. Fenner v. Lindsay, 625 P.2d 180, 28 Wn. App.
626, 630 (1981).
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