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

Welcome back to my deep dive series on Anti-SLAPP, which aims to lawsplain what Anti-SLAPP statutes are, how Anti-SLAPP motions work, and what separates a good Anti-SLAPP statute from a bad one.

Chapter One is here, in case you missed it. In Chapter One, I explained how existing civil procedure rules make it difficult and expensive to get rid of bogus, harassing defamation lawsuits early in the case. To sum up: the existing rules of civil procedure allow a defendant to make a motion to dismiss a case. But in ruling on a standard motion to dismiss, a judge must generally assume that all facts stated in the complaint are true, and usually can’t consider facts or evidence outside the complaint. That makes it easy for plaintiffs to resist motions to dismiss even when their lawsuit is bogus.

In this chapter, let’s talk about how anti-SLAPP statutes change that.

An Anti-SLAPP statute is a state law that creates a special procedure for a defendant to attack a meritless lawsuit aimed at protected speech. (Later in this series we’ll talk about efforts to pass a federal law, and how that might work.)

Anti-SLAPP Statutes Offer A Special Procedure, Not Substantive Rights

An Anti-SLAPP statute has two key parts: what speech it covers, and what procedures it creates for a defendant to use when someone sues over that speech.

The first part can be tricky, in part because we confuse things when we say Anti-SLAPP statutes “protect” speech. Here’s what you need to understand: Anti-SLAPP statutes create special procedures, not substantive rights. All sorts of speech is already protected by the First Amendment, state constitutions, federal and state statutes, and so forth. Those sources establish that you have a right to say things. The problem is that the existing justice system makes it difficult and expensive to vindicate those rights. An Anti-SLAPP statute creates additional “protection” for some of that speech by creating a special procedure a defendant can use when they are sued for speech specified in the statute. But Anti-SLAPP statutes only apply to the types of speech listed in the statute, and only “protect” it by creating a special procedure to establish that the lawsuit is meritless.

So: the First Amendment gives me the right to say “Don’t vote for Kodos!” California’s Anti-SLAPP statute doesn’t give me the right to say “Don’t vote for Kodos!”, but if Kodos sues me, it does give me the right to file a special motion to throw out the lawsuit based on my First Amendment right.

Some Anti-SLAPP statutes are very broad and cover almost all speech protected by the First Amendment. Some Anti-SLAPP statutes are very narrow and only cover, for instance, speech directed at a government body regarding an issue it is considering. (Those narrow statutes are aimed at the original “classic” SLAPP suits — lawsuits directed at activists and protesters aimed at stopping them from protesting about property development by complaining to city councils and zoning boards.) But whether an Anti-SLAPP statute is broad or narrow, it only “protects” speech in the sense that it creates a special motion to file when someone sues over that speech. It doesn’t establish any new right to speak. 

 The Anti-SLAPP Procedure

Though Anti-SLAPP statues differ in what speech they cover, most of them create a very similar procedure. Here’s how it works.

 Phase One: The Defendant Must Show The Lawsuit Is Based on Speech Covered By The Anti-SLAPP Statute

If you’ve been sued in a state with an anti-SLAPP statute, you can file a special motion under the statute. Sometimes it’s called a “Special Motion To Strike,” sometimes just a motion to dismiss. The motion has two phases.

In phase one, you — the defendant filing the motion — have the burden of establishing that the lawsuit is attacking you for speech covered by the statute. That doesn’t mean establishing that you will win the case, or that the speech is protected by the First Amendment — it means establishing that the plaintiff is suing you for a kind of speech listed in the statute.

So, let’s imagine that I am called before Congress at the confirmation hearing for Kodos, who has been nominated as Attorney General. I testify that Kodos is a dangerous lunatic and should not be Attorney General, despite all appearances those are actually qualifications for the job. Kodos sues me for defamation in California state court, asserting that my testimony defamed him. California’s Anti-SLAPP statute is very broad and its coverage includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” So, in my Anti-SLAPP motion, I simply point out that Kodos is suing me for speech before Congress, and I have carried my Phase One burden under the statute.

Sometimes Phase One analysis is tricky because a plaintiff tries to disguise their attack on speech as some sort of routine non-speech claim. Maybe Kodos, instead of suing me for defamation, sues me for “interference with prospective economic advantage,” arguing that my testimony has wrongfully interfered with his anticipated profitable economic relationship with the government of Turkey. In general, he can’t get away with that. Most jurisdictions say that what matters is the “gravamen” of the claim — the core behavior that the plaintiff is attacking. It doesn’t matter that Kodos styles his lawsuit as a business tort or something else because the gravamen of his complaint — what he says I did wrong — is speech that is listed in the Anti-SLAPP statute.

Here’s one absolutely crucial part of this: the defendant filing the motion can offer evidence. Remember from Chapter One that when a defendant files a routine motion to dismiss, generally speaking the judge can only consider the facts asserted in the complaint. But an Anti-SLAPP statute allows the defendant making the motion to introduce evidence in the form of declarations and exhibits. That means the plaintiff has a much harder time evading dismissal through vagueness. Say Kodos sues me in California and simply says “Mr. White interfered with my economic advantage through fraudulent acts that interfered with my relationships,” but doesn’t specify that it’s because I testified before Congress. The Anti-SLAPP statutes permit me to file a motion and attach a declaration showing “the actions he’s talking about are my testimony to Congress, which is covered by the statute.” In other words, it allows the defendant to show the judge exactly what speech the Plaintiff is actually attacking, rather than relying on the Plaintiff’s vague or inaccurate summary of it.

Are there ifs and buts and complications? Of course. We’ll deal with some of them in another Chapter.

So: if the defendant carries his or her Phase One burden, we shift to Phase Two.

 Phase Two: The Plaintiff Must Show They Can Win 

If the defendant filing the motion carries their burden in Phase One, the burden shifts to the plaintiff to prove they can possibly win. Most Anti-SLAPP statutes say that the plaintiff has to prove, with admissible evidence, a “probability of prevailing.”

That’s a dumb way to phrase it. “Probability of prevailing” is misleading. It doesn’t really involve “probability” at all. The judge doesn’t, and can’t, weigh evidence or the credibility of witnesses. Here’s what the plaintiff has to do: they have to come forward with admissible evidence which, if believed by a jury, would be legally sufficient to support their claim. This is the same standard as for summary judgment, the kind of motion we discussed in Chapter One.

Let’s use an example from Chapter One again. John Doe sues me, saying that I called him a convicted criminal. I file an Anti-SLAPP motion, saying I actually only called him a jerk — which is a protected opinion — not a convicted criminal. I can offer ten declarations from people who say I only called him a jerk, but if John Doe offers one admissible declaration — even his own — to say I did call him a convicted criminal, he’s carried his burden by producing evidence which, if accepted, would entitle him to win. But if he doesn’t have any admissible evidence — if his declaration just says “well, I interpreted him saying I’m a jerk as saying I’m a convicted criminal,” or “well, I heard online that maybe he called me a convicted criminal” — then he loses.

This, again, is a big improvement over a standard motion to dismiss. It forces the plaintiff to be very specific, immediately, about what speech they’re suing over and their theory of why that speech is not protected. It forces the plaintiff to show what evidence supports their theory that the speech is outside First Amendment protection. It provides a mechanism for the defendant to litigate their First Amendment argument early and clearly, based on specific allegations and facts rather than vague and general allegations.

To understand better why this is so important, imagine that I write a lengthy blog post criticizing a local politician. The politician sues me for defamation, claiming the blog post contained false and harmful statements, but not specifying which ones or why the politician thinks they are outside First Amendment protection. When I file an Anti-SLAPP motion, the politician is forced to specify which statements in the blog post are defamatory, why they are outside of First Amendment protection, and what evidence the politician has supporting those assertions. It prevents the politician from dragging me through lengthy and vindictive litigation by being strategically vague or by making assertions without any proof.

If the plaintiff can’t carry this burden — if they have no admissible evidence necessary to prove a claim, or if the claim they are forced to specify attacks speech that is, on its face, absolutely protected by the First Amendment — then the defendant wins.

 Mr. Green Shows Up

That takes us to the next crucial part of an Anti-SLAPP statute — the money.

Anti-SLAPP statutes generally provide that if the defendant wins, they are entitled to their reasonable attorney fees. It’s impossible to exaggerate how important that is. It’s a huge deterrent to filing frivolous and malicious defamation claims. It means that the defendant’s victory is not merely pyrrhic, because it doesn’t come at the price of being out of pocket tens of thousands of dollars. It’s a substantial step to curing one of the main problems with litigation — even if you win, you lose because you’re financially ruined by the fight.

In Conclusion, A Comparison

So, let’s close with a comparison of how a bogus defamation claim goes without, and with, an Anti-SLAPP statute.

Imagine that I write a scathing blog post about a local politician, offering my opinions about his bad behavior. The politician sues me, saying that I have defamed him, but not specifying what I said that was defamatory. Under the old system, usually the judge would be bound by the facts in the politician’s complaint and I would not be able to introduce my blog post or evidence about it in a motion to dismiss. I’d have to litigate the case through, at least, summary judgment, costing tens or hundreds of thousands of dollars and many months or even years, before I could establish the case should be thrown out. I don’t get that money back.

By contrast, with an Anti-SLAPP statute, I can immediately file an Anti-SLAPP motion and attach my blog post to establish that it’s covered by the Anti-SLAPP statute. The politician would be forced to specify what parts of the blog post he thinks are defamatory and why, supported by admissible evidence. I could then pick that apart — showing that he’s attacking opinions that are on their face protected by the First Amendment, showing that he can’t establish that other parts are false, and so forth. I win early, and he has to pay my attorney fees. The difference is stark.

Next time, we’ll talk about the difference between good and bad Anti-SLAPP statutes, and what you’d want to see in a statute if you wanted to stop frivolous lawsuits. After that we’re moving on to another popular and controversial topic: what about federal lawsuits? How do Anti-SLAPP statutes work in federal court?

If you have questions for this series, send them to ken at popehat dot com.