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


  1. Rick H. says

    Thanks for providing some legal context. One thing about these statutes that could be confusing to us laymen is a tendency for lawyers to use both "SLAPP" or "anti-SLAPP" to refer to them. Popehat isn't alone; I've seen it on other blawgs, too, and it took a while to realize you all were talking about the same thing.

  2. Dan Irving says

    I clicked the 'Contact your representative' link on the Public Participation Project and put this in the message field:

    "With the advent of the Brett Kimberlin fiasco currently making it's way around the internet (a la the Streisand Effect), it is readily apparent that North Carolina needs anti-SLAPP legislation. It is one of 21 states that has not taken steps to protect it's citizens First Amendment rights. Free Speech is a non-partisan issue. SLAPP can be used to chill the oppositions voice no matter the ideology. Anti-SLAPP legislation, hopefully modeled after California and Texas – two states who's anti-SLAPP legislation are the most robust, should be introduced immediately."

    Not sure how it works but hope it helps. It's always been my view, especially after reading Phillip K. Howards "The Death of Common Sense" in the 90's, that this country (fed and state) are in need of serious tort reform. (Specifically because of cases like those involving Brett Kimberlin and not, as most tort reform advocates on my side argue, because of Liebeck v. McDonald's Restaurants)

  3. Damon says

    I've edited your 6/09 Posting comments:

    What is best in life?


    Truly thou ist an uber pimp! I want to be a lawyer. :)

  4. Me says

    The California law is good, but it doesn't always work. I got hit with a SLAPP suit. The judge allowed nearly a year of discovery which cost $250k for my attorney. Plaintiffs still couldn't prove any portion of their case, and it was dismissed. Plaintiffs are appealing, and the court refuses to award my fees and make them pay up. I won over a year ago. And here we sit.

  5. silvermine says

    If it helps, this post caused me to search for MD's anti-SLAPP laws and found a post from 3 years ago where the only comments were that there are often no comments. Yay archives!

  6. Christina says

    Thanks for so much detail on this passion of yours! I stand with Rick. H – SLAPP/anti-SLAPP has been a confusing semantic detail for me. An appointed county official (we are in an unincorporated CA district) threatened me with suit in response to a letter I wrote to elected county officials regarding the conduct of the appointed advisory panel she chaired (and her conduct personally as chair). It seems her claim that one can not criticize political appointees with the same vigor as elected officials was completely and totally bogus (as I assumed), since the panel and appointments are 'authorized by law'. Of course, I was not addressing an open proceeding nor commenting on a specific issue before the panel, but certainly section (4) of your quoted statute applies. She was/is power-hungry and completely willing to lie, so I placed little credence in her statement of legal fact.

    It is unfortunate that so many are willing to lie and deceive – the end justifies the means – that the evidentiary provisions of the SLAPP statute seem incredibly important. Are they standard or is that also something that varies across states?

  7. BobN says

    Maybe you should add what exactly SLAPP stands for. Nothing worse than undefined acronyms

  8. says

    Christina: if you ever get a threat like that again and don't call me for help, I shall really be quite put out.

  9. says

    On the other hand, I've personally seen California's anti-SLAPP statute abused to punish the bringing of a highly meritorious but politically-charged lawsuit brought in the public interest. Bringing suit can itself be a protected form of expression, and the anti-SLAPP statute can be and has been used to suppress and deter it.

  10. Christina says

    Ken, I accept the anti-SLAPP slap :-) I could sit in on another public meeting and write another letter if you really want the pleasure of anti-SLAPPing her, or would that be enabling you too much? ;-)

  11. says

    It's pointless to order your existence to please me.

    But if your own inclinations lead you into trouble again, please call.

  12. says

    Georgia's seems quite narrow, unfortunately, only protecting "statements made before a governing body" and that sort of thing.

  13. says

    QR, not sure why you chose to address me by my last name when my first is readily available. Yes, I do have any example, though I'm sure Ken does not want to see this thread derailed by a discussion of the merits of that particular case. I wrote a post about it here: http://www.peoplevstate.com/?p=1375
    More extensive discussion of the underlying merits can be found in a law review comment linked from the same site.

  14. says

    I alluded to criticisms about the scope of the California anti-SLAPP statute in my post. I agree that I'd prefer this post not become a venue for discussion of one particular case. But John's linked posts includes a link to the court decision at issue. That's a good place to start.

  15. perlhaqr says

    It certainly seems like this is a pretty important law to put on the books, especially in this day and age where (as Kimberlin demonstrated) people who are inclined to BIFD can ask the Google Ubermind to notify them if anyone, anywhere, says anything about them online.

    Though it seems like you could still end up kinda screwed on lawyer's fees if you get SLAPPed by someone like Kimberlin, who doesn't pay judgements against him anyways. But I suppose that's not significantly worse than a situation where you owe your lawyer for defending you.

  16. says

    Thanks Ken for a great summary of anti-SLAPP law. I especially appreciated your explanation of the terminology, as others have commented here. Even a lot of lawyers will refer to a "SLAPP motion" or "getting hit with a SLAPP" when they mean "getting hit by an anti-SLAPP motion."

    John Kindley — Did you argue in that case that the public interest exemption to the CA anti-SLAPP statute applied? If your case was really brought in the public interest, you should have been able to defeat an anti-SLAPP motion pretty easily. (C.C.P. section 425.17(b).)

  17. says

    SPQR: Cool. Ryan: That is extremely interesting. The suit was brought a number of years ago, so honestly I don't remember, but I can't imagine we would have missed that or failed to raise it if it was available. The plaintiffs asked for no damages, because they themselves suffered no damages. (Your state is very good about that, conferring standing upon basically anyone to sue on behalf of the general public for injunctive relief to stop false advertising. North Dakota was one of the extremely rare states to provide likewise, until another case I brought fixed that.) How long has that public interest exemption been part of the anti-SLAPP statute? I note this language in 425.17(a): "The Legislature finds and declares that there has been
    a disturbing abuse of Section 425.16, the California Anti-SLAPP Law,
    which has undermined the exercise of the constitutional rights of
    freedom of speech and petition for the redress of grievances,
    contrary to the purpose and intent of Section 425.16."

  18. says

    "The evidence must not only show what I did, but be sufficient to defeat any First Amendment or statutory privileges I have."

    I'm sorry to be the dumb one, but what are statutory privileges?

  19. says


    Not dumb at all.

    Statutory privileges are state-law privileges given certain speech.

    For instance, California has a strong litigation privilege. That means, as an example, that if you sue me and call me a convicted criminal in the complaint, I can't sue you for defamation based on that statement. (There's lots of complex nuances: for instance, the statement in the complaint is privileged, but if you hold a press conference and repeat the statement, that's not privileged.)

  20. Personanongrata says

    Have anti-SLAPP statutes been used in recent instances where agents of the state have prevented people peaceably to assemble, and to petition the Government for a redress of grievances(eg UC, Berkeley pepper spray incident)?

    If not, why not?

  21. says

    No. Because the anti-SLAPP statute, as described above, creates a procedural motion that can be filed in response to a civil complaint. It does not create a new right of action to be employed against censorious or improper behavior in the abstract.

  22. says

    The "why not" in that specific case would largely be because the cops were surrounded and incited. Note in the video (the full one, not the one that Occupy groups propagate) the two wearing goggles and rain-coats. They are professional provocateurs. They used the students -the stupid, stupid students – to get the cops to defend themselves.

    Good to see their efforts paid off in your case.

  23. says

    What a shame.

    I guess. In the sense that it's a shame that my gold rocket pony is not a diamond-studded gold rocket pony.

  24. says

    Ryan, I see from your organization's website that the public interest exemption didn't become effective until January 1, 2004. Too late for us. Maybe our case was one of the "abuses" the Legislature found and declared.

  25. Xenocles says

    Is representing the plaintiff in a SLAPP considered malpractice or to be otherwise sanctionable?

  26. says

    Xenocles, I seem to recall a recent California case that says that the fee order cannot be imposed against the losing lawyer, only against the client. I don't know the law in other states. Advising a client to file a lawsuit that leads to a successful anti-SLAPP motion might, indeed, be malpractice.

  27. says

    Interesting, Ken, I was under the impression that it was possible in California to make the order joint between attorney and client – but I confess its been quite a few years since I paid attention to California SLAPP statute to that level of detail.

  28. freedomfan says

    Ken, great post. I am among those who thought he had a general idea what anti-SLAPP statutes were and that I would someday look up a concise and worded-for-the-layman explanation to be sure. Thanks for providing just that.

    BTW, as a Californian, this is one of those instances where I am heartened by my state's law. But, as a non-lawyer I am not sure how such issues are affected when the butt-hurt party resides out-of-state. In other words, assume that he lives in New Jersey (no anti-SLAPP statute) and he decides to sue me for an opinion I've written on my blog. Does the California anti-SLAPP statute apply or can he work things so that only NJ law applies? Is this one of those instances when the federal nuances you mention become important?

  29. says

    freedomfan: here's the short answer. If he sues you in California, it applies (dull and lengthy discussion of choice-of-law clauses in contracts in odd hypothetical situations omitted). If he sues you in a state without an anti-SLAPP statute, you're out of luck. (ditto omitted).

    That's the reason behind advocacy for a federal anti-SLAPP statute that would permit removal to federal court — which is part of the subject of the upcoming Reason issue, and my blurb in it.

  30. freedomfan says

    Sounds like he would have a pretty good incentive to try to sue me in his home state. Since the internet may make it easy to claim that's where the damage was done, that would be trouble… I'm not usually a fan of the fed writing laws about things the states should deal with on their own, but it may be necessary here. I guess I will be looking forward to that Reason piece.

  31. Joe says

    Yee haw – so glad I live in Texas. I havea similar question as to what SPQR stated on holding the counterparty legal representation jointly responsible for damages. It states reasonable attorney's fees but that's it.

    On the other hand we have an interesting one to watch here http://slappedintexas.com/ on Wentworth v Jones (aackk – more politicians). Although, the one I find more interesting is the recent Texas anti-SLAPP against American Heritage Capital, LP who had sued Dinah Gonzalez, and later Alan Gonzalez, for defamation after Mr. Gonzalez posted comments online about a negative experience he had with the online mortgage lender.

    Dinah and Ala Gonzalez won. American Heritage Capital deserves to go into the que for censorious douchebaggery.

    I'm not finding language specifically stating one way or the other in the Texas

    I'll poke around in the one for Texas because I can't remember

  32. Joe says

    Aacckk – either my keyboard has run amuck or I am way past making sense due to lack of sleep which happens to me frequently after international travel. Hopefully my prior post will not cause too much confusion.

  33. Mike says

    Sorry to come back to this post so late – very interesting.

    Does California have "security for costs" provisions?

    In some jurisdictions (including mine) where the plaintiff is likely to be liable for costs and unlikely to be able to pay, a judge may order the plaintiff to post security for those costs before any other steps can be taken. Its a good way to stop the plaintiff in their tracks and avoid an empty judgment for costs (especially if counsel isn't jointly liable).

  34. John David Galt says

    Can the anti-SLAPP law be used against actions brought under laws that "overprotect" favored industries from criticism? (I'm thinking of the Texas law under which Oprah was sued for saying unkind things about the beef industry.)

  35. David Brant says

    Ken, I've just gotta say … if you every give up lawyering, you've got a shot at a second career of comedy blogging. LAFFO: "…abusing an eight-year-old with a live (though world-weary) squirrel…"

    Thanks for your entertaining, and enlightening, articles. I look forward to them every week.