Washington State Passes New Anti-SLAPP Statute

Effective July 25, 2021, the state of Washington has a new anti-SLAPP statute—replacing the version that the Washington Supreme Court declared invalid in 2015. The statute restores important defenses for news organizations, political groups, and other speakers and publishers against defamation and similar claims.

The Uniform Public Expression Protection Act, a modified version of which Washington adopted, is designed to deter meritless litigation that targets the exercise of free speech. Like its predecessor, RCW 4.24.525, the new law allows a defendant to file a special motion for expedited relief if the claim falls within three categories:

• "[C]ommunications in a legislative, executive, judicial, administrative, or other governmental proceeding";
• "[C]ommunication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding"; and
• "[E]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern."

A court must dismiss the lawsuit if it finds the claims subject to the anti-SLAPP statute and that either:

• The responding party fails to establish a prima facie case as to each essential element of the cause of action; or
• The moving party establishes either that (1) the responding party failed to state a cause of action upon which relief can be granted, or (2) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.

In making its decision, a court must "consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment."

While a motion to strike is pending, all other proceedings, including discovery, are stayed. A court may allow "limited" discovery if a party shows that "specific information is necessary to establish whether a party has satisfied or failed to satisfy" its burden on the merits "and the information is not reasonably available unless discovery is allowed."

If the court grants the motion, the moving party is entitled to its attorneys' fees and costs—so long as the moving party provided the responding party 14 days' notice before filing the motion. If a court denies the motion, the responding party may recover fees and costs if the court finds the motion was "not substantially justified or filed solely with intent to delay the proceeding." In the event of a denial, the moving party also has an automatic right of appeal.

The statute contains numerous exemptions, including real property claims, claims for wrongful death or bodily injury, insurance claims, and claims under state labor laws. The statute also exempts claims under the state Consumer Protection Act, those for common law fraud, and those brought against a person selling or leasing goods or services for a communication related to the sale or lease of those goods or services.

However, these last three exemptions are inapplicable for claims arising from the gathering, receiving, posting, or processing of information for communication to the public or for the creation, dissemination, exhibition, or advertisement or promotion of an artistic work; or claims related to the communication, gathering, receiving, posting, or processing of consumer opinions, such as ratings and reviews.

The uniform law replaces RCW 4.24.525, which the state Supreme Court held unconstitutional in Davis v. Cox, 183 Wn.2d 269, 351 P.3d 862 (2015). In Davis, the court found the burden of proof on the responding party—to prove a probability of prevailing on the merits by clear and convincing evidence—invalid.

The uniform law fixes this defect by incorporating the standards needed to defeat a motion to dismiss under Washington CR 12(b)(6) and CR 12(c), as well as Washington CR 56. These rules—for motions to dismiss, motions for judgment on the pleadings, and summary judgment motions—largely mirror the federal rules of civil procedure.

This article was originally featured as a media advisory on DWT.com on July 28, 2021. Our editors have chosen to feature this article here for its coinciding subject matter.

Ambika Kumar, Bruce E. H. Johnson and Eric M. Stahl are partners in the Seattle office of Davis Wright Tremaine.