The State Of State Anti-SLAPP Laws

The First Amendment's freedom of speech and right to petition can be rendered meaningless if their exercise subjects the speaker to harassment. Meritless litigation is one technique used by those wishing to silence speakers or petitioners. The time and resources required to mount a successful defense, even to frivolous claims, is enough to force many speakers to think twice before continuing to express themselves.

Recognizing the problem posed by these harassing lawsuits, commonly referred to as Strategic Litigation Against Public Participation ("SLAPP"), at least nine states have enacted anti-SLAPP statutes.1 These statutes can provide valuable protection to those exercising their First Amendment freedoms, such as broadcaster and publishers whose business is speech. While all these anti-SLAPP statutes provide a cause of action for targets of SLAPPs, the ambit of their protection varies as do the types of remedies available. A comparison of the statutes in California, New York, and Washington, and cases decided under them, demonstrates the differences.

The California Experience

Since its enactment in 1992, the California anti-SLAPP statute has protected all who are sued as a result of "participation in matters of public significance."2 The statute creates a special motion for a defendant subjected to a SLAPP that stays all discovery until the motion is ruled upon and entitles successful movants to recover attorneys' fees and costs.3 When faced with a motion under the anti-SLAPP statute, a plaintiff must show a probability of success on the merits to avoid dismissal.4

Numerous types of defendants, including members of the media, have benefited from California's anti-SLAPP statute.5 Although a few courts called into question whether the statute covered such a variety of defendants,6 recent amendments to the statute and court decisions have confirmed that the statute is to receive a broad construction.

In 1997, the California legislature amended the anti-SLAPP statute in two significant ways. First, the statute now specifically states that it "shall be construed broadly."7 Second, the legislature added an umbrella category to the representative list of activities receiving the statute's protections, specifically stating that the law applies to "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."8

The California Supreme Court's Briggs v. Eden Council for Hope & Opportunity9 decision is consistent with the legislature's intent that the anti-SLAPP statute receive broad construction. The Briggs court held that defendants filing motions of dismissal under the anti-SLAPP statute do not have to demonstrate that their speech activities directly concerned an issue of public significance; it is enough that the activities took place in connection with, or arose from, any public proceeding. Quoting Braun v. Chronicle Publishing Co., the court held that it is "'the context or setting itself that makes the issue a public issue.'"10 The court concluded that the "Legislature's stated intent is best served, therefore, by a construction of [the anti-SLAPP statute] that broadly encompasses participation in official proceedings, generally, whether or not such participation remains strictly focused on 'public' issues."11

The definition of protected activities under the anti-SLAPP statute received an addition gloss by the California courts in Sipple v. Foundation for National Progress.12 Donald Sipple, a well-known political consultant, sued the magazine Mother Jones for defamation on account of an article it published about Sipple's custody fight with his first wife which recounted...

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