First Amendment Effects of Both SLAPP and Anti-SLAPP Legislation
University of Denver Professor, George Pring, first coined the term Strategic Lawsuit Against Public Participation (“SLAPP”) in an article in 1989.1 SLAPPs are intended to quash allegedly defamatory speech related to public discourse.2 Examples of conduct that may open someone to SLAPP liability include: writing letters to the editor, commenting at public hearings, participating in demonstrations, and circulating flyers or petitions. 3
Many critics of SLAPPs, however, assert that SLAPPs violate individuals’ First Amendment rights. Some critics go so far as to argue that SLAPP suits impermissibly punish political action.4 The First Amendment grants individuals the ability to “petition their government for redress or grievances”, yet SLAPP suits stifle petitioning activities through the threat of litigation.5
In order to curb SLAPP suits, twenty-nine states, in addition to Washington D.C. and Guam, have enacted anti-SLAPP legislation.6 These anti-SLAPP statutes allow for meritless lawsuits filed against individuals exercising their constitutionally protected First Amendment rights to receive early dismissal.7 These expedited motions to dismiss generally places the burden on the Plaintiff that is more akin to surviving a summary judgment motion. Notably, there is currently a circuit split over whether federal courts sitting in diversity should apply anti-SLAPP statutes.8 Currently, Los Lobos Renewable Power, LLC, et al., v. AmeriCulture, Inc., et. al., a Tenth Circuit case, is waiting for the Supreme Court to grant or deny certiorari concerning this issue.9
In order for an individual’s constitutional rights to be violated, the actor attempting to quash the individual’s speech must be either the State or a representative of the State. While states with SLAPP laws have created a mechanism to sue, the State is not a party in a SLAPP suit. This begs the question of whether First Amendment rights are truly being violated.
Indeed, the Plaintiff in a SLAPP suit must prove that the Defendant’s words were defamatory, which has three elements; (1) the defendant made a false statement about the Plaintiff; (2) the defendant made an unprivileged publication to a third party; (3) the publisher acted negligently in publishing the communication.10
Fundamentally, the Constitution protects free speech, yet the law has always recognized that there can be consequences for certain kinds of speech—such as hate speech. Making false statements about an individual—even if done as part of a political discussion or public discourse—is speech that does not deserve to be protected, according to SLAPP legislation. There is nothing fundamentally bad about protecting those that are falsely maligned in the public discourse.
The trouble, however, occurs when SLAPP laws are abused. The anti-SLAPP legislation aims to curb abuses of SLAPP laws. There is an inherent inequity, however, when federal courts sitting in diversity choose to apply FRCPs 12 and 56 in lieu of anti-SLAPP laws. Some argue that refusing to apply anti-SLAPP laws are a violation of substantive rights to immunity or a state prescribed defense. However, anti-SLAPP laws sitting in diversity in the federal courts may refuse Plaintiffs their right to discovery.
We will hopefully see what the Supreme Court has to say soon if they grant certiorari to Los Lobos v. Americulture.
See generally George W. Pring, SLAPPs: Strategic Lawsuits against Public Participation, 7 Pace Envtl. L. Rev. 3 (1989).↩
Id. at 5.↩
What Is a SLAPP Suit?, ACLU Ohio, https://www.acluohio.org/slapped/what-is-a-slapp-suit (last visited (Oct. 24, 2018). [https://perma.cc/68FY-3W5K]↩
Laura Long, SLAPPing Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the Right to Petition, 60 Okla. L. Rev. 421, (2017)↩
Anti-SLAPP Statutes and Commentary, Media Law Resource Center, http://www.medialaw.org/topics-page/anti-slapp?tmpl=component&print=1 (last visited Oct. 24, 2018). [https://perma.cc/W5SX-MHD3]↩
Petition for Writ of Certiorari for Defendant-Appellant at 2, Los Lobos Renewable Power, LLC, et al., v. AmeriCulture, Inc., et. al., No. 18-89 (S.Ct., filed Jul. 16, 2018).↩