The Constitution gives everyone broad rights to speak out, protest and petition under the First Amendment, but those rights aren’t unlimited. When people believe they’ve been injured by defamatory speech, they have a right to sue — even when the matter involves commenting, petitioning, assembling or reporting on matters of public interest.
When such a lawsuit is filed, one might assume that the plaintiff believes there is a legitimate claim for damages. In a First Amendment case, it would mean they believe the defendant’s conduct wasn’t constitutionally protected. But what happens when the purpose is different? What if the plaintiff really isn’t concerned about winning or losing as much as using the lawsuit itself as leverage?
In the case of a SLAPP action, or strategic lawsuit against public participation, the actual purpose is to silence and even punish the defendant for speaking out on a matter of public interest through a costly and lengthy legal battle. Such a lawsuit also discourages others from speech that might prompt the plaintiff to go after them, too.
A SLAPP suit represents both intimidation and an abuse of the legal process. Thirty-three states and the District of Columbia have passed laws to help defendants dispose of such claims relatively quickly. These are called anti-SLAPP laws based on the notion that people should not be burdened with meritless lawsuits for exercising their First Amendment rights.
SLAPP suits attack the petition clause of the First Amendment
The petition clause of the First Amendment guarantees, in part, “the right of the people. . .to petition the government for a redress of grievances.” The abridgment of this right distinguishes a SLAPP suit from other cases based on similar allegations.
A SLAPP suit may look like a civil lawsuit for defamation, nuisance, interference with contract, interference with economic advantage, or invasion of privacy, but its purpose is different. About this purpose, Judge J. Nicholas Colabella wrote in Gordon v. Marrone (N.Y . 1992), “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”
Professors George W. Pring and Penelope Canan coined the term SLAPP suit in the 1980s after noting a surge in lawsuits filed to silence public criticism by citizens.
SLAPP suits can arise when citizens erect signs on their own property, speak at public meetings, report violations of environmental laws, testify before Congress or state legislatures, or protest publicly, among many other similar acts. These acts can prompt a party who claims to be aggrieved by such acts — often developers, merchants and even public officials — to file suit.
The digital age has created countless new opportunities for SLAPP suits, especially in confrontations over social media posts, online reviews and forum comments. Merchants such as restaurant owners have sued critics who panned their goods or services. Developers have tried to stop social media groups from opposing their plans online. Elected officials have tried to block complaining constituents.
SLAPP suit defendants claim immunity based on First Amendment
Defendants in SLAPP suits can mount an immunity defense based on the First Amendment clause that gives citizens the right to petition for redress of grievances. This immunity is often known as the “Noerr-Pennington immunity” based on its role in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) and United Mine Workers v. Pennington (1965). The First Amendment argument, in essence, is that the government participates in private censorship efforts by permitting “the legal system to be used as a tool to suppress core political communication.” Anti-SLAPP laws seek to curb such abuse.
The Noerr-Pennington cases provided a basis to protect SLAPP defendants so long as the defendant’s activity that prompted the lawsuit wasn’t itself a sham. In 1991 the Supreme Court in Columbia v. Omni Outdoor Advertising ruled that a defendant was entitled to immunity unless the plaintiff could prove a “sham” by showing that the petitioning activity was objectively baseless and not genuinely aimed at attaining some favorable government action or inaction. This case also has been interpreted to support the use of an expedited process to dispose of SLAPP suits, mirroring fast-track processes created by statutes that address other specific legal situations.
Anti-SLAPP processes, provisions vary widely among states
An expedited process is critical to anti-SLAPP legal provisions. Allowing the plaintiff to slowly proceed with discovery or other measures that can exhaust the defendant’s resources only exacerbates the chilling effect that such lawsuits have on public participation.
Even larger organizations such as media organizations often lack the financial resources to fight well-heeled plaintiffs dedicated to keeping the litigation going. Potentially more damaging is the effect that such suits can have on those who have not yet been targeted: The desire to avoid being sued translates into a reluctance to participate in public debate.
The strength of anti-SLAPP laws varies widely among the states.
The fast-track approach is one of several elements that advocates of strong anti-SLAPP laws say are essential. Another desired provision requires losing plaintiffs to pay reasonable legal fees of defendants, which serves as a strong deterrent-in-reverse against filing frivolous actions and way to preserve First Amendment rights.
Advocates seek broad definitions of what is a “matter of public interest” to allow more defendants to utilize anti-SLAPP remedies; opponents seek narrower definitions. Strong anti-SLAPP laws also place the burden of proof fully on the plaintiff to defeat the anti-SLAPP motion and allow for immediate appeals of adverse decisions.
In a typical anti-SLAPP filing, once the defendant asserts the plaintiff has filed a SLAPP lawsuit, the plaintiff must demonstrate to the court in a relatively short period of time that the claim has enough evidentiary merit to proceed. The strongest laws contain tight deadlines for filings and responses with limits on discovery. Both sides maintain the right to appeal the court’s decision on the anti-SLAPP motion. If the plaintiff wins an appeal, then the lawsuit proceeds through normal court processes.
Some politicians, businesses and others have tried to weaken anti-SLAPP legal protections. For example, this happened in Texas in 2019 after opponents convinced the Legislature that the state’s anti-SLAPP law, seen as one of America’s strongest, was too expansive.
Advocates promote an anti-SLAPP law called the Uniform Public Expression Act drafted by the Uniform Law Commission. Several states have passed measures based directly on this language.
Most states now have anti-SLAPP laws
According to the Institute for Free Speech, 33 states and the District of Columbia have passed anti-SLAPP laws of varying strength, leaving 17 states without anti-SLAPP statutes. The institute ranks the laws in California, Nevada, Tennessee, Vermont, Georgia and Oklahoma as the strongest. In September 2023, New Jersey became the 33rd state with an anti-SLAPP law, one reportedly based upon the Uniform Public Expression Act.
One prominent example of a successful anti-SLAPP defense came in 2018 when defendants won nearly $2 million in fees and costs from the late Nevada casino magnate Sheldon Adelson. The matter involved a claim by Adelson against the National Jewish Democratic Council during the 2012 election cycle for an online petition that stated Adelson personally approved of prostitution in his Asian casinos.
Conversely, efforts by Fox News to use New York’s anti-SLAPP laws to help defend itself from defamation claims in lawsuits over its coverage and commentary on election fraud claims in the 2020 presidential election have been unsuccessful.
No federal anti-SLAPP law has been enacted
Congress has not enacted an anti-SLAPP law that would apply to federal court cases. According to the Reporters Committee for Freedom of the Press, court decisions have been mixed on whether anti-SLAPP provisions set by states can apply to libel and defamation actions that land in federal courts.
The Institute for Free Speech maintains an updated website with news and information about anti-SLAPP laws, court rulings and legislation as well as state-by-state analysis and a report card grade for each state’s anti-SLAPP law.
This article was originally published in 2009 by Brandi Snow and updated in 2023 by Dennis Hetzel. Snow is an attorney in Clovis, California. Hetzel lives in Holden Beach NC and is the former editor and publisher of the York (PA) Daily Record, Kentucky general manager for Enquirer Media in Cincinnati and executive director of the Ohio News Media Association, where he also headed the Ohio Coalition for Open Government. Attorney Bruce E. H. Johnson of Davis Wright Tremaine in Seattle WA, an expert on anti-SLAPP laws and legislation, also provided feedback on the revision.