Why, Yes, I AM Into SLAPPing
One of my partners won an anti-SLAPP motion yesterday in Los Angeles. It wasn't my own client, and I didn't draft the motion, but I advised and edited, and I was very proud to be on the team. There are very few things in civil practice as satisfying as winning a SLAPP motion.
Then it occurred me: I talk about anti-SLAPP motions around here a lot, and ask people to support anti-SLAPP legislation. But I've been assuming that everyone knows what they are and how they work and why they are important. Reading commentary elsewhere suggests that's not the case.
So today, I'm going to talk about what SLAPP motions are, and how they work, and why they are important.
Edited to add: a few people have suggested that even the terminology is confusing. So, to start: SLAPP stands for Strategic Lawsuit Against Public Participation. A malicious or frivolous lawsuit that chills speech is the SLAPP; the statute employed against it is the anti-SLAPP statute, and the motion under the statute is an anti-SLAPP motion. To make things more confusing, people who should know better (like me) often sloppily refer to anti-SLAPP motions as SLAPP motions, or anti-SLAPP statutes as SLAPP statutes.
I'm going to use California's anti-SLAPP statute as a model, because (1) it's the oldest, (2) it has the most caselaw interpreting it, (3) it's tied for the best, and (4) I've used it personally and repeatedly.
Let's start with how things go when you don't have an anti-SLAPP statute.
Without An Anti-SLAPP Statute
By necessity, this is going to be a bit generalized and omit some exceptions. Lawyers bear with me, please.
Say you sue me for defamation and intentional infliction of emotional distress ("IIED" — or, as I call it, "BIFD," for "Butthurt In the First Degree.") In a state without an anti-SLAPP statute, my options are quite limited. I could file a motion to dismiss — called a demurrer in California and some other jurisdictions. You might call that a "so what if I did?" motion — a motion to dismiss asks the court to determine whether, if all specific facts alleged in the complaint is true, the allegations are enough to entitle the plaintiff to relief under the law. Sometimes this suffices to get rid of a defamation case. For instance, if you sue me and say "Ken said on his mean blog that my writing suggests a recent head injury for which I have not sought medical attention, and that defamed me," then I might be able to get the case dismissed, because that's clearly a statement of constitutionally protected opinion. But on the other hand, if you write "Ken said on his blog that I was convicted of abusing an eight-year-old with a live (though world-weary) squirrel, and it's not true," then the court has to accept that as true for purposes of the motion to dismiss. I can't, in my motion, introduce evidence outside the four corners of the complaint to contradict it (with exceptions I won't get into here). Similarly, many courts will let defamation plaintiffs get away with allegations that are too vague to get rid of on constitutional grounds — like "Ken said untrue and defamatory things about my criminal background on his blog," when what they secretly mean is "Ken said that I am a bad person just because I am a convicted drug-dealer, perjurer, bomber, and federal-agent-impersonator, when in fact that's all in the past and I am a swell person and you should donate to my foundation."
So: the bottom line is that motions to dismiss are often an inadequate tool to stop a frivolous or malicious case easily. If a Plaintiff has a little skill with pleading, or a little luck, or is willing to flat-out lie about what you said and whether it is true, they'll defeat the motion, and the case will continue. Moreover, while you are litigating the motion to dismiss, they are free to start discovery — demands for documents, depositions, interrogatories, subpoenas to third parties for records about you, etc. That can be hideously expensive and harassing.
The motion to dismiss isn't the last opportunity to get rid of the case short of trial. That, generally, is the motion for summary judgment. A motion for summary judgment could he called a "they have no proof" motion. Such motions are usually filed after discovery, and assert "the facts are in, and there are no disputes of relevant fact — the facts show that the plaintiff can't win under the law." So, for instance, if the plaintiff's defamation claim was vague, and all the discovery showed that my blog post just said "plaintiff is a twerp," I should win at summary judgment, because (1) there are no disputes of fact about what I said, and (2) what I said, because it's clearly opinion, isn't defamation. But on the other hand, if the plaintiff can create any dispute of relevant fact, the court can't grant the motion. So, for instance, if I say "I never had up a post saying that the defendant strangles puppies at the dog park," and my IT manager says he can find no record of such a post, and ten people say they read this blog every day and never saw it, BUT the plaintiff swears he read it on the blog, I don't get summary judgment. It's not a motion about weighing evidence; it's about asking whether there is any evidence.
Once again, it's not an adequate remedy. A plaintiff willing to lie or fabricate evidence, however unbelievable, can defeat it. And getting to summary judgment can be ruinously expensive — the motion is notoriously complex and time-consuming to draft, and the discovery leading up to it can be all-encompassing.
if I lose either a motion to dismiss or a motion for summary judgment, I can't appeal immediately; I have to wait until after trial (with all its risk and expense.) I could file a special request with the Court of Appeal called a writ, but writs (even relatively meritorious ones) are discretionary and very rarely granted.
Moreover, even if I eventually win, I am only entitled to hard costs — reporters at depositions, filing fees, etc. I am not entitled to the tens or hundreds of thousands of dollars in attorney fees I've spent.
The bottom line — without an anti-SLAPP statute, a malicious litigant can often inflict substantial expense and hardship upon someone in retaliation for their speech, even if their claim lacks merit, and do so with relative impunity.
[I'm deliberately omitting discussion of various motions for sanctions one might employ to test the adequacy of a defamation claim; why they are inadequate is too lengthy a subject for this post. Similarly, I've ignored some nuances about federal court.]
With An Anti-SLAPP Statute
Now, let's contrast that with how a defendant can use an anti-SLAPP statute like California's to fight.
Imagine, again, that you've sued me for defamation and BIFD. I file an anti-SLAPP motion. First, that stays discovery in the case — no more bleeding me dry or harassing me with depositions and document demands and third-party subpoenas. Second, once I file the motion, your die is cast as a plaintiff — even if you drop your suit at this point, I can insist on pressing forward, getting a ruling, and seeking the fees I'll describe below.
First things first: I have the initial burden of showing that you are suing me based on rights protected under the anti-SLAPP statute. Speech protected by the statute may be narrower than all speech protected by the constitution and state law — but it's still extraordinarily broad. Here's what California's statute protects:
(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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.
The only thing that excludes, really, is a statement on a purely private issue not of public interest. But California courts construe "public interest" very broadly.
So: I have the initial burden of proving that your lawsuit attacks speech protected under that definition. I do that by (1) quoting your lawsuit, and (2) offering any evidence necessary to put it in context. That's key — unlike in a motion to dismiss, I can offer extrinsic evidence. So if you sue me saying "in his blog post of June 7, Ken defamed me," I can introduce a copy of my blog post of June 7 and show that I was writing about a subject of public interest and am thus protected by the statute. California courts have developed one crucial doctrine: it doesn't matter how you style or caption your claims if they are aimed at my protected speech. You can't evade the statute by suing me for BIFD or interference with contract or harassment or bullying or cybermobbing — if the point of the claim is my protected speech, it's protected. Take it away, Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 187: “Our Supreme Court has recognized that the anti-SLAPP statute should be broadly construed . . . and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety breach of contract [or] fraud claim’ when in fact the liability claim is based on protected speech or conduct."
[Note: this is an area where statutes like California's — and that of Texas — are superior. In some states, the anti-SLAPP statute is much narrower, and only protects speech before a legislative or judicial body, or aimed at influencing a legislative or judicial body, or has a "without malice" exception that renders it useless. The Public Participation Project has the ugly details.]
So, assume that I have carried my initial burden under the anti-SLAPP statute. The burden now shifts to you, the person suing me. You are now obligated to present admissible evidence showing a probability of prevailing. The evidence must not only show what I did, but be sufficient to defeat any First Amendment or statutory privileges I have. This doesn't require the court to weigh evidence — the plaintiff need only offer admissible evidence which, if accepted, would be sufficient to prevail. But so early in the case, this is often hard to do; it means the plaintiff must sue based on evidence, not based on speculation. A plaintiff must present evidence that what I said was false and defamatory and outside the scope of my First Amendment rights. Perhaps because of the stage of the case, this often proves more difficult for plaintiffs in the anti-SLAPP context than it does in the summary judgment context.
[Once again, I am leaving out some nuance about federal practice.]
Say that I prevail. Huzzah. Now comes the good part — I am entitled by law to reasonable attorney fees from my accuser. It's not discretionary — the judge can't split the baby and grant the motion but deny fees, as judges are wont to do. Judges may give me a haircut on my fees (it's not atypical to get cut down from, say, $35,000 to, say, $25,000), but then again they may not, especially if the complaint was particularly malicious and/or frivolous.
Say that I lose. Under California's anti-SLAPP statute, and some others, I have a right to an immediate appeal, and the case is stayed in the meantime. The Court of Appeal can sanction me if my appeal is frivolous, but until it rules on the appeal (a process that routinely takes more than a year), plaintiff's ability to harass me through a meritless defamation claim is halted. (Note that right could have pernicious consequences in meritorious defamation claims where the defendant is willing to file a meritless appeal — the California Court of Appeal has criticized the statute on that grounds.) Moreover, if I prevail on appeal — either because I lost and then won on appeal, or because I won below and then won on appeal as well – I am entitled to my attorney fees on appeal.
It's not perfect. Clever and dishonest litigants can lie their way around anti-SLAPP statutes. But an anti-SLAPP statute is a tremendously effective tool in resisting litigation calculated to retaliate against, or chill, protected speech.
So: that's why I talk about anti-SLAPP statutes all the time. Does your state have one? Find out. If not, or if it has a bad one, write your state representative and urge passage of an anti-SLAPP law, and follow developments in your state legislature. Moreover, follow the process of proposed federal anti-SLAPP laws. (Watch this space for more on that later this year.)
I have a blurb being published in Reason this Fall on anti-SLAPP statutes, and will be writing more here on the subject.
Last 5 posts by Ken White
- DoJ's Gag Order On Reason Has Been Lifted -- But The Real Story Is More Outrageous Than We Thought - June 22nd, 2015
- "Bald, Fat & Crazy" -- A Book About Perseverance - June 19th, 2015
- Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena? - June 18th, 2015
- Partial Victory In Patterico's Free Speech Case Before Ninth Circuit - June 15th, 2015
- Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com - June 8th, 2015