What Is An Anti-SLAPP, Anyway? A Lawsplainer Series

Last week, Ivanka Trump and Jared Kushner made a transparently bogus defamation threat against the Lincoln Project over political billboards in Times Square. Free speech lawyers everywhere wondered if the couple would actually sue, possibly creating a high-profile opportunity to test a new anti-SLAPP law in the works in New York.

I could have written about that — applying the new proposed law (still, as far as I can tell, not signed by Governor Cuomo) to the hypothetical lawsuit. But I’ve noticed something recently — almost everyone has heard of “SLAPPs” and “Anti-SLAPP statutes,” but relatively few people seem to know what they are.

And so — under the heading You Asked For This And By God You Deserve It — welcome to the Popehat Report’s Anti-SLAPP lawsplainer series. This is a complicated topic, so I’m breaking it into separate posts. I’m making it basic for non-lawyers, but as the series progresses some of the policy issues will be of interest to lawyers in this field as well.

Let’s start with a very basic definition of terms.

What’s a SLAPP? Starting With A Few Simplified Definitions

• SLAPP is an acronym for Strategic Lawsuit Against Public Participation — a meritless lawsuit filed to deter, silence, or punish protected speech. The acronym was coined years ago to refer fairly narrowly to lawsuits by big companies against environmentalists and local residents protesting the companies’ use of land. Now it’s used much more broadly to refer to meritless lawsuits aimed at protected speech.

• An Anti-SLAPP statute is a law that gives defendants a special procedural vehicle to ask a court to dismiss a SLAPP lawsuit early in the case on the grounds that it attacks protected speech and is meritless.

• An Anti-SLAPP motion is a request to a court, filed under an Anti-SLAPP statute, asking the court to dismiss a case early on the grounds that it is a meritless attack on protected speech.

In the course of this series I’ll explain all of that in more depth, including the meaning of terms like “protected speech.” But to understand Anti-SLAPP statutes and anti-SLAPP motions, you first must understand a bit about how litigation works without them, and why they are needed. That’s the subject of this first post in the series. It’s time to learn some civil procedure! Wait, where are you going?

In Litigation, The Process Is The Punishment

Cops have a saying: “you can beat the rap, but you can’t beat the ride.” Put another way, someone wrongfully accused of a crime may be found not guilty, or even have charges against them dismissed, but not before they are handcuffed, jailed, abused, and humiliated. Merely initiating the criminal justice process creates punishment, whatever the outcome of that process.

American civil litigation is the same. Being sued is ruinously expensive, stressful, intrusive, humiliating, and time-consuming, whatever the eventual outcome. Suing someone punishes them even if the lawsuit ultimately fails. The vast majority of Americans cannot afford to defend a brief and limited lawsuit, let alone one that lasts for years and goes to trial. If you’re sued for defamation, hiring a competent lawyer who knows defamation law will cost you tens of thousands of dollars on the low end and hundreds of thousands in a prolonged or difficult case, and hardly anyone has that lying around.

Moreover, the costs to sue and defend a suit are not equal. Plaintiffs can sue on the cheap, but a competent defense is often much more expensive. Plaintiff lawyers may take a defamation case on a contingency basis, agreeing to be paid out of the proceeds of any settlement or judgment, so suing costs the plaintiff nothing. Defense lawyers, by contrast, must be paid up front. Though there are statutes and rules that, in theory, permit a judge to award sanctions for frivolous lawsuits, practically judges very rarely apply them, and the “American rule” prevails — that is, both winner and loser of a case pay their own legal fees, and a prevailing defendant is out of luck. This creates an incentive for plaintiffs to make bogus legal threats and bring meritless cases. It’s often rational to settle a case for, say, $10,000 and an unwarranted apology rather than face financial ruin even if you win. Plaintiffs, and plaintiffs’ lawyers, know that, and act accordingly.

This system is ripe for abuse in the context of free speech. It’s hard to extort someone if they don’t have anything you want. What’s the point? But it’s easy to extort them to shut up if you want their silence, which anyone can give. This broken system allows plaintiffs to say, in effect, “the price of you saying things I don’t like will be me ruining your life. You saying things I don’t like is going to cost you everything you own. So be smart and shut up.”

Existing Methods of Dismissing Bogus Lawsuits Early Are Inadequate

So. If someone files a bogus defamation claim against you, even if you win at trial, you lose because it costs you hundreds of thousands of dollars and years of misery. Does the system do anything about that? Isn’t there a way to get a bogus lawsuit thrown out from the start?

Eh, sort of.

Inadequate Method One: The Motion To Dismiss

The system does a little to get rid of bogus lawsuits, but not enough. Generally, a defendant in a civil lawsuit can file a motion to dismiss the case. These are called different things in different jurisdictions. It’s called a motion to dismiss in federal court, a demurrer in state court in California, and other things in other courts. Whatever you call it, a motion to dismiss a case has rules and limitations that make it inadequate to fight many bogus lawsuits.

On television, lawyers stride into court and yell “Your Honor, this lawsuit is outrageous, there’s no evidence, you should dismiss it,” and the judge sometimes dismisses it, sometimes after looking at evidence. That’s not the way real motions to dismiss work. Think of a motion to dismiss as saying “so what if I did?” A motion to dismiss is a legal argument to the judge that even if everything in the complaint is true, the law doesn’t give the plaintiff a right to recover. With a few exceptions, the judge can only consider what’s in the complaint, not anything outside of it, and must assume that the facts stated in the complaint are true.

Let’s think about an example. Say I say on Twitter “John Doe is a jerk,” and John Doe sues me for defamation, complaining I called him a jerk. I would have a very strong motion to dismiss. Calling someone a jerk is, as a matter of law, not defamation — it’s an insult or opinion, not a provably false statement of fact, and so can’t be defamatory. I could point to the complaint and say “even if that’s true that’s not defamation and therefore dismiss it.” John Doe loses based on what he says on the face of his complaint.

But now imagine that John Doe sues me, and in the complaint claims that I called him a convicted criminal, even though that’s not true. Or imagine he just says “Ken White wrote a series of tweets making provably false statements of fact about me, harming my reputation” — that is, he hides exactly what I said through vagueness. In those cases, I’m probably out of luck. I can’t introduce evidence outside the four corners of the complaint to show what I really said, and the judge has to take the facts in the complaint as true, and so I’m stuck litigating the case even though it’s transparently meritless.

[By necessity, so this isn’t a billion words long, I am simplifying for non-lawyers. Judges can consider some things outside the complaint — “judicially noticeable” things like the existence of court filings. So, for instance, if I called John Doe a convicted criminal, and he sued me, I could probably show it was true by introducing the criminal judgment against him in my motion to dismiss, because it’s an official court record. Furthermore, a judge only has to take “well pleaded” facts as true. That means a plaintiff can’t just file a complaint that says “he defamed me, give me money.” The plaintiff has to plead some sort of facts, not legal conclusions.]

Plaintiffs’ lawyers are clever and can easily craft a complaint to avoid a motion to dismiss. Here are some common problems:

• Plaintiffs will lie about exactly what the defendant said.

• Plaintiffs will lie about the truth or falsity of what the defendant said.

• Plaintiffs will describe what the defendant said very vaguely to avoid making defenses clear (for instance, concealing that the allegedly defamatory statement was offered as an opinion protected by the First Amendment).

The bottom line is that though some bogus defamation cases may be susceptible to a motion to dismiss, many are not, particularly if the plaintiff’s lawyer is skilled and dishonest. Moreover, even a successful motion to dismiss a bogus defamation claim can easily cost tens of thousands of dollars. You don’t get that back. Got it under the couch cushions?

 Inadequate Method Number Two: The Summary Judgment Motion

If a defendant can’t get the case thrown out with a motion to dismiss, he or she might have a shot at a motion for summary judgment down the road. A motion for summary judgment says to the court “on the legal issues that matter, the evidence in this case is undisputed, and the defendant should win.” Unlike a motion to dismiss, a motion for summary judgment can rely on evidence outside the four corners of the complaint.

Let’s use another example. I call John Doe a jerk on Twitter and say that he shouted a racial epithet at a co-worker. John Doe sues me, saying vaguely that I made provably false statements of fact about him. In discovery, I force John Doe to specify what statements I made that he thinks are false. In my motion for summary judgment, I establish exactly what he claims is defamatory, and offer declarations showing that I called him a jerk (which is not defamatory because it’s just an insult, not a statement of fact) and a declaration from the co-worker and ten witnesses who heard him yell the racial epithet. I argue that the evidence is undisputed and it shows that I win because my statements were either mere insult or true. Do I win?

It depends. A plaintiff can defeat summary judgment by offering any contradictory evidence. So John Doe can submit a declaration saying “the co-worker and witnesses are all lying, I didn’t say that,” and win the motion, because a judge isn’t allowed to weigh evidence or assess credibility. But if John Doe can’t do that — if he can’t offer admissible evidence which, if a jury believed it, shows that he could win — then I win the motion.

As you can see, a motion for summary judgment is useful for weeding out a bogus case when there’s literally no evidence to support it, or when the plaintiff’s complaint is deliberately vague about what happened and explaining what happened shows that the claim is bogus. But there’s one big problem: getting to summary judgment is hugely expensive. Summary judgment motions are very complex and costly to litigate, and only happen after months or years of the discovery process, which is expensive, intrusive, and stressful. The defendant doesn’t get that money back. Winning at summary judgment is therefore a pyrrhic victory — not so much as a win at trial, but ruinous for any normal citizen.

Summary: The Inadequacies of Existing Law

In summary, existing law without an anti-SLAPP motion makes it very difficult and ruinously expensive to get rid of even a clearly bogus lawsuit targeting speech. Because of the expense of litigation and the uneven power of plaintiffs and defendants, this leads to a system that incentivizes people to make malicious and meritless legal threats to silence speech they don’t like.

Next time, I’ll talk about how anti-SLAPP statutes change that, and how an anti-SLAPP motion gives a defendant special procedures to get rid of a bogus lawsuit early. As the series continues, I’ll talk about what makes a good anti-SLAPP statute vs. a bad one, the problem of anti-SLAPP statutes in federal court, and criticisms of anti-SLAPP statutes. I’ll also answer questions, so send ‘em if you’ve got ‘em.