Category Archives: Freedom of Speech

GET SLAPP’IN YA’LL – using anti-SLAPP motions to fight back

SLAPP suits are frivolous lawsuits used by bullies to silence critics and suppress First Amendment rights.  Many states have enacted laws to protect the little guy targeted by a SLAPP suit by enacting anti-SLAPP statutes. The statutes allow an improperly sued defendant to file an anti-SLAPP motion early in the lawsuit to dismiss the case and some provide for the recovery of attorney’s fees and costs if the motion is successful. Texas has enacted some of the best anti-SLAPP legislation in the nation. It pays to Fight Back! if you have been targeted for protected activity.

The vast majority of people have never heard of SLAPP suits and anti-SLAPP motions.  Over the years, I have handled several SLAPP lawsuits where anti-SLAPP motions have been used by and against my clients in various types of litigation across the country.  Having been on both sides of an anti-SLAPP motion, I have decided it is better to give than to receive.

What is a SLAPP lawsuit?

SLAPP is an acronym for “Strategic Lawsuit Against Public Participation” and refers to a legal action filed with the legal intent to silence vocal opponents or intermediaries who express unfavorable and disparaging opinions by instigating financially oppressive and meritless litigation.  You might be “SLAPPed” for posting a blog entry, posting a comment on another person’s blog, writing a letter to the editor of a newspaper, testifying before the legislature, reporting official misconduct, circulating a petition or seeking to enforce your own rights, among other things.

SLAPP suits are most often brought by corporations, developers or government officials against individuals or community organizations that oppose their actions knowing that the suit creates an exorbitant financial burden on the defendant who often has little financial means, particularly in comparison to the filing party.  In most instances, a SLAPP suit has no legal merit and is only instigated maliciously.  However, because the goal of a SLAPP suit is often accomplished by forcing a SLAPP defendant to abandon the criticism out of fear, intimidation or mounting legal costs, the actions are frequently used as a tactical weapon.  In addition, a SLAPP plaintiff knows that if the lawsuit garners enough media and publicity, the mere filing of the action will serve as a deterrent to others.  Let’s face it, most people do not welcome lawsuits because of the time and money involved.

Who is the “good guy” and the “bad guy” in SLAPP suits?

Typically lawsuits involve the “good guy” plaintiff trying to right a wrong by suing the “bad guy” defendant.  While exceptions exist in any litigation and a plaintiff may very well file a lawsuit against an alleged wrongdoer that may be completely frivolous, normally the “good guy” has suffered an injury or damage because of the actions of the “bad guy.”  In response, a plaintiff is sometimes forced to file a lawsuit in order to be fairly compensated by the defendant in monetary damages.  Excluding the frivolous lawsuits, normally the “good guy” is the plaintiff and the “bad guy” is the defendant.  By no means am I suggesting that every plaintiff is “good” or every defendant is “bad” in normal legal actions.  The use of “good guy” and “bad guy” is for discussion purposes only to illustrate the difference between SLAPP suits and other legal actions.

Having said that, the typical roles of the parties are reversed in a SLAPP suit.  The plaintiff who files a SLAPP suit is actually the “bad guy” suing the “good guy.”  By definition, a SLAPP suit is filed by a plaintiff against a defendant because the intent of the legal action is to either silence the defendant’s right of free speech or to prevent the defendant from pursuing a legal right or redress.  So, not only are the parties wearing the wrong “hats” in SLAPP suits, but a defendant is forced to endure costly and protracted litigation before reaching a jury, where a SLAPP defendant will likely prevail.  Getting to this stage of the lawsuit, however, may be financially disastrous for a SLAPP defendant.  As a result, most states with SLAPP legislation have enacted a special procedural mechanism to protect the “good guy.”

This is the fun part – SLAPP back!

To discourage the chilling effect SLAPP suits have on constitutionally protected freedoms and to balance the inequities of burdensome legal costs, most SLAPP legislation allows a defendant to file a motion to dismiss, the anti-SLAPP motion, early in the case before legal costs and expenses force a defendant to give up.  By having this procedural challenge available to a SLAPP defendant, it puts the burden on a SLAPP plaintiff to come forward with enough evidence to convince a court that the lawsuit is not being used for an improper purpose.  If a plaintiff fails to do so, the court may dismiss the lawsuit and in some states, award a defendant costs and expenses incurred for having to defend the SLAPP suit – a malicious lawsuit used for an improper purposes.

This is perhaps the most satisfying aspect of representing a defendant in a SLAPP suit.  You win.  You win early.  In addition, you get to enjoy the fruits of your labor by recouping your client’s costs and attorney’s fees.  Nothing makes me happier than winning a case for a client and making the client whole, to the greatest extent possible, as a result.

I got lucky in California (not that way)

Texas did not enact SLAPP legislation until July 2011 (more below).  As a result, by coincidence my first experience with SLAPP suits, the law and its concepts, involved a California case where I represented the defendant.  It was fortunate set of circumstances for me because it exposed me to new area of law that eventually made its way to Texas.  When the Texas legislation was enacted, I already had several years of experience with the laws under my belt.  So, for that reason, I got lucky in California.

Anyhow, my client was a small Florida based company that operated a website geared towards scuba diving enthusiasts.  At the time, especially if you lived in South Florida, any number of internet searches related to scuba diving may have eventually lead you to my client’s quirky, but relatively obscure, website.  My client did not promote, advertise or in any way hold the website out as an authoritative source on anything.  It was a place where you could find information about scuba diving, engage with likeminded fans, arrange scuba diving adventures and read content that was posted by my client as well as visitors about scuba diving.  Unfortunately, the plaintiff, a major player in the scuba diving industry, took issue with some of the content posted on the website and filed a lawsuit in California seeking to shut down the website.  Thanks in large part to California’s progressive legislation and plaintiff’s decision to file suit in the worst possible state for its agenda, the case ended very nicely for my client.

However, things may have been very different had plaintiff filed the case in Florida, likely even today.  The current anti-SLAPP statutes in Florida still offer very limited protection for bloggers and non-traditional journalist engaging in online publishing activities.  I’ll be honest, my client probably would have lost in Florida.

How things generally work under SLAPP laws

I describe my experience with SLAPP law as a “coincidence” because before my little scuba diving case, not only had I never heard of an anti-SLAPP motion, but California was one of the first states to enact legislation making anti-SLAPP motions possible.  Today, most states (28 states, D.C. and 1 U.S. territory) have laws similar to California’s anti-SLAPP statute, which has been a model since it is older, has abundant case law interpreting it and considered the most advanced.

However, Texas passed the Citizens Participation Act in 2011, which some suggest is the best anti-SLAPP law in the nation.  The Texas legislation was spearheaded by a coalition formed by Texas attorney Laura Lee Prather, so she certainly deserves enormous credit.  In addition, one of the best resources for information about Texas anti-SLAPP laws is a website called SLAPP’ED IN TEXAS.COM, to which Ms. Prather is a frequent contributor.  Because the website is so well organized and easy to follow, I frequently use it as a reference when discussing Texas anti-SLAPP laws instead of the black letter law in Chapter 27 of the Texas Civil Practice and Remedies Code.  Most readers will find more valuable information on the website than by reading the official statute.

Since I practice in Texas, I will focus on Texas law and explain what SLAPP motions are, how they work and why they are important.  Again, a quick review of the terminology.  SLAPP stands for Strategic Lawsuit Against Public Participation.  A malicious or frivolous lawsuit that chills speech is the SLAPP.  The statute employed against it is the anti-SLAPP statute.  The procedural motion to dismiss under the statute is an anti-SLAPP motion.  Generally speaking, the only thing the Texas statute does not protect is a statement on a purely private issue not of “public concern.”  But since the statute defines “public concern” very broadly, my right of free speech in Texas is very well protected under the law.

For reference regarding the discussion below, see the website above and review the following relevant parts of the statute:  Sec. 27.001 DEFINITIONS (1) – (4) and (7), Sec. 27.003 MOTION TO DISMISS and Sec. 27.005 RULING.  These are the sections of the law I use below in my example.

You SLAPP’ed me!  Now what?

So you decide to sue me for defamation for something I have posted on my blog.  I decide that you are attempting to suppress my First Amendment rights (free speech), so I file an anti-SLAPP motion.  In filing my anti-SLAPP motion, I have the initial burden to establish, by a preponderance of the evidence, that the lawsuit was filed in response to the exercise of my First Amendment rights protected by the anti-SLAPP statute.  Once my anti-SLAPP motion is filed, it automatically stays discovery in the case — no more bleeding me dry or harassing me with depositions and document demands and third-party subpoenas.  In addition, even if you drop your suit at this point, I can insist on pressing forward, getting a ruling, and seeking the fees I’ll describe below.  I can carry my initial burden by quoting your lawsuit and offering any evidence necessary to put it in context, which is crucial, because it allows me to introduce extrinsic evidence like a copy of my blog post showing that I was writing about a matter of public concern.

Afterwards, the burden shifts to you to establish, by clear and specific evidence, a prima facie case for each essential element of the claim I am challenging.  The evidence must not only show what I did, but be sufficient to defeat any First Amendment or statutory privileges I have.  This does not require the court to weigh evidence because the plaintiff need only offer admissible evidence which, if accepted, would be sufficient to prevail.  But so early in the case, this is often hard to do.  This means that a plaintiff must sue based on evidence, not based on speculation.  A plaintiff must present evidence that what I said was false and defamatory and outside the scope of my First Amendment rights.  Usually because of the stage of the case, this often proves difficult for plaintiffs in the anti-SLAPP context.

Say that I prevail.  The statute provides for mandatory fee shifting when a party wins an anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs.  It is not discretionary so the court can’t split the baby and grant the motion but deny the fees.  While courts may reduce legal fees, the Judge may not refuse to award them because attorney’s fees are mandated by the statute.

Say that I lose.  Under Texas’s anti-SLAPP statute, I have an immediate right to an expedited appeal.  The Court of Appeals can sanction me if my appeal is frivolous, but until it rules on the appeal (a process that routinely takes more than a year), plaintiff’s ability to harass me through a meritless defamation claim is halted.  Moreover, if I prevail on appeal, either because I lost and then won on appeal, or because I won below and then won on appeal as well, I am entitled to my attorney’s fees on appeal.  A word of caution, if the court finds that an anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings, the court may award fees to the plaintiff.  So be careful in choosing when to file an anti-SLAPP motion and make sure you are on solid footing when you do so.

The SLAPP legislation in Texas and other states is not perfect.  Clever and dishonest litigants can lie their way around anti-SLAPP statutes.  But an anti-SLAPP statute is a tremendously effective tool in resisting litigation calculated to retaliate against, or chill, protected speech.

Good luck Ya’ll – for all you Texans

 

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