State Anti-SLAPP Statutes Need to Be Reined In by State Legislatures
In the late 1980s, professors George Pring and Penelope Canan began researching and first coined the term “Strategic Lawsuit Against Public Participation” (“SLAPP”).1 Pring and Canan observed a pattern of individuals speaking out about public issues, followed by the opponents or targets of those speaking out filing retaliatory tort lawsuits like, defamation or nuisance.2 The ACLU of Ohio explains that a SLAPP suit “is not necessarily designed to achieve a favorable verdict,” but instead to “intimidate the target in order to discourage them and others from speaking out on an issue of public importance.”3 Concerned about their citizens’ freedoms of speech and petition, many state legislatures have enacted anti-SLAPP statutes. Anti-SLAPP statutes make it easier for certain speech-related lawsuits to be dismissed before discovery.
Federal circuit courts are split on the issue of whether anti-SLAPP statutes apply in federal courts. However, I will focus on the question of whether the state anti-SLAPP statutes in practice are fulfilling the purpose the enacting legislatures envisioned. I argue that, in many cases, powerful defendants have used anti-SLAPP statutes as a safe harbor against defamation claims. Of the ways anti-SLAPP statutes lend themselves to abuse by powerful defendants, two in particular can be traced to the anti-SLAPP statutes’ broad, imprecise language defining a SLAPP suit. The statute may fail to include the plaintiff’s primary intent as a defining characteristic of a SLAPP suit. Additionally, the statute may not consider a defendant’s size or financial resources.
In California and Texas, the two most populous states in the nation, the states’ anti-SLAPP statutes encompass practically any act in furtherance of the defendant’s freedom of speech in connection with a public issue. As the first paragraph of California’s anti-SLAPP law reads, “[t]he legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition.”4
Texas’ anti-SLAPP statute provides that the statute is intended to “safeguard” free speech while still “protect[ing] the rights of a person to file meritorious lawsuits.”5 The Texas statute similarly includes any “communication made in connection with a matter of public concern.”6
Neither the California nor Texas statute allows for the court to consider the plaintiff’s primary intent in filing. Because the plaintiff’s primary intent in filing is not an element of either statute, the statutes apply to lawsuits that would not be considered SLAPP suits in the traditional sense. There are reasons other than to chill free speech that plaintiffs bring defamation suits. Plaintiffs may do so to protect their reputation or to receive damages when their reputation had been degraded through defamatory language.
Also, what is meant by issues of “public concern” is generally interpreted broadly. Take for example, a very recent defamation case brought by Stephanie Clifford—better known by her professional name Stormy Daniels—against President Donald Trump. Because Ms. Clifford is a resident of Texas, the court applied Texas’ anti-SLAPP statute. President Trump calling Ms. Clifford and her allegations a “total con job” was readily accepted as a matter of public opinion by the court because it involved public figures.7
Second, the failure to consider a defendant’s size or wealth provides powerful defendants with a safe harbor from defamation suits from less powerful individual plaintiffs. The concern identified by Professors Pring and Canan was not the chilling of speech of large corporations or powerful defendants, but of “normal, middle-class and blue-collar Americans.”8 Recently, however, powerful defendants have successfully dismissed defamation suits by individual plaintiffs. Many of the anti-SLAPP statutes require that plaintiffs be able to prove, at the motion-to-dismiss stage, that their complaints are likely to succeed. Plaintiffs bringing defamation lawsuits now must be able to prove their prima facie case at the complaint stage, without any opportunity for discovery. This can be onerous because it requires plaintiffs to build the best case possible without the use of potentially material information. Anti-SLAPP statutes have made it especially difficult for individual plaintiffs to sue media defendants. Media defendants’ use of anti-SLAPP motions to dismiss should be particularly concerning to legislatures considering that media defendants have large audiences where potentially defamatory statements can be broadcast with impunity.
For these reasons, legislators should see how the state statutes they enacted are doing the work the legislators intended. If not, perhaps state legislatures should amend the state anti-SLAPP statutes to limit its the scope. The overbroad language enables abuse. By providing more reasonable boundaries on anti-SLAPP statutes, legislators could rein in abuse by powerful defendants.
George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 3 (1989).↩
Jonathan Segal, Anti-SLAPP Law Make Benefit for Glorious Entertainment Industry of America: Borat, Reality Bites, and the Construction of an Anti-SLAPP Fence Around the First Amendment, 26 Cardozo Arts & Ent. L.J. 639, 644 (2009); Penelope Canan & George W. Pring, Strategic Lawsuits Against Public Participation, 34 Soc. Probs. 506, 506 (1988).↩
What Is a SLAPP Suit?, ACLU of Ohio (Nov. 15, 2018) https://www.acluohio.org/slapped/what-is-a-slapp-suit. [https://perma.cc/QP2K-FW5F]↩
Cal. Civ. Proc. Code § 425.16.↩
Tex. Civ. Prac. & Rem. Code Ann. § 27.002.↩
Tex. Civ. Prac. & Rem. Code Ann. § 27.001.↩
Clifford v. Trump, No. CV1806893SJOFFMX, 2018 WL 4997419, at *6 (C.D. Cal. Oct. 15, 2018).↩
George Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 3 (1989).↩