What is a “SLAPP”?
“SLAPP” is an acronym for Strategic Lawsuit Against Public Participation. The term was coined in the 1980s to describe lawsuits initiated to silence public speech about issues of public importance. Under the original definition, the public speech at issue had to be made by a non-governmental individual or group (i.e. a private citizen or non-profit) to a governmental body or official (e.g. a city council or consumer protection office). Examples of traditional SLAPP suits would be defamation actions based upon:
- A concerned citizen providing testimony against a developer at a zoning hearing
- A parent speaking up at a school board meeting about teacher misconduct or poor conditions in a school building, or
- A local activist petitioning for the recall of a public official
Over time, the definition has become more expansive. Today, the term SLAPP is commonly understood to mean a complaint or counterclaim that lacks legal merit and has been filed for the purpose of interfering with a person or organization’s rights to speak about a matter of public interest. Under the modern definition, a SLAPP suit may be based upon erecting signs in one’s yard, criticizing a public official in an online blog, or protesting against a corporation in a public space.
One hallmark of a SLAPP suit is that the plaintiff does not actually care about winning their case in court. Rather, they bring the suit for the purpose of discouraging the defendant—and/or others like the defendant—from engaging in constitutionally protected speech or other petitioning activities. In essence, a SLAPP is punishment by legal process.
What are anti-SLAPP laws?
Anti-SLAPP laws are state statutes that provide an expedited procedure for the dismissal of cases that bear the hallmarks of a “SLAPP”—namely, claims that arise from the defendant’s speech or petitioning on an issue of public interest and lack legal merit. Through this procedure, defendants can ask the court to dismiss the plaintiff’s case before the parties engage in the discovery process, which involves gathering documents, taking depositions, and securing expert testimony to support their claims and defenses. Many anti-SLAPP laws provide additional benefits for defendants, such as the ability to recover attorney’s fees for defending against the SLAPP if they secure a dismissal.
Anti-SLAPP laws can apply to various causes of action, but most often target claims for defamation, invasion of privacy, nuisance, or interference with contract or economic advantage. Whether the statute will apply to a particular claim or cause of action depends on the facts of the case. At present, 35 states and the District of Columbia have anti-SLAPP statutes. While there are similarities amongst these statutes, there are significant differences both in relation to the type of the conduct covered by the statute, as well as the applicable procedures for challenging alleged “SLAPPs” within that jurisdiction.
Do anti-SLAPP laws apply in federal court?
Currently, there is no federal anti-SLAPP law that applies to claims brought in federal court, though there have been attempts by Congress to enact such a law. Additionally, courts are divided on whether to apply state anti-SLAPP statutes to (e.g.) defamation or invasion of privacy claims brought in federal courts. Whether or not a federal court will apply a state’s anti-SLAPP law is a complex issue, but largely dependent upon the federal circuit in which the court lies.
For example, courts within the Ninth Circuit have consistently applied state anti-SLAPP statutes and the First Circuit has found Maine’s anti-SLAPP statute can be applied by federal courts. Conversely, the Second Circuit, Fifth Circuit, Seventh Circuit, Tenth Circuit and Eleventh Circuit, as well as the D.C. Circuit, have refused to apply state anti-SLAPP statutes. The division between federal circuits has arisen due to disagreements about whether states should be able to prescribe a special procedure for the dismissal of cases in federal court. The Supreme Court has yet to weigh in on this issue, resulting in a circuit conflict.
Key takeaways
When bringing or defending against speech-related cases in federal court, the availability of the anti-SLAPP procedure will depend upon the circuit in which you are located. Notably, several circuits have yet to address this issue directly and, thus, the applicability of anti-SLAPP statues may be a case of first impression. As anti-SLAPP proceedings significantly impact the timing and progression of the case, it is crucial to take into account how the venue will affect your case and advise clients accordingly.
