SLAPP stands for “Strategic Lawsuit Against Public Participation.” The name arose in the early 1990s, in response to a trend that many people found very disturbing. Large corporations, or individuals with a lot of power and money, would sue their critics for defamation, even though it would be quite obvious that they have little chance of winning, because their critics were speaking about matters of public concern.
How Are Speakers Protected Against SLAPPs?
The new anti-SLAPP law applies to the following types of claims:
- any communications in a public place open to the public or a public forum in connection with an issue of public interest; or
any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition - Significantly, the term “public interest” is construed broadly and means “any subject other than a purely private matter.” Whether the relevant speech is an issue of public interest or not is fact specific. For example, a federal court interpreting this new law ruled that an email and letter addressing “sexual impropriety and power dynamics in the music industry” was an issue of public interest because the communications were sent in November of 2017 against the backdrop of the #MeToo movement
HOW DOES THE NEW ANTI-SLAPP LAW WORK?
If the person or entity being sued (a defendant) believes that the lawsuit brought against them is a SLAPP lawsuit, they may file a motion to dismiss the action. In support of an anti-SLAPP motion to dismiss the action, the defendant must provide proof that the claim relates to the defendant's exercise of their free speech rights “on a matter of public interest.” Defendants can submit documentary evidence and sworn statements in support of their motion, allowing them to obtain an early dismissal of the lawsuit.
Once the defendant provides evidence that the anti-SLAPP law applies, the burden of proof shifts to the plaintiff. If the plaintiff then cannot show that the claim has a “substantial basis in law” or is supported by a “substantial argument” to modify existing law, the suit will be dismissed. “Substantial basis” is not defined in the statute.
While the motion is being decided by the court, the discovery process of the case is on hold. The discovery process often includes the collection and exchange of documents, testimony, and other evidence between the parties. The purpose of the discovery hold is to avoid the burdensome and expensive discovery process, while the court determines whether to dismiss the action.
WHAT ARE THE CONSEQUENCES OF FILLING A LAWSUIT TO PREVENT FREE SPEECH?
If the plaintiff fails to meet its burden of proof to show that the claim has a substantial basis in law, the action will be dismissed. Further, the plaintiff must also pay the defendant's attorney's fees and other litigation costs. This is a change from the prior law, where the court was not required to award legal fees to a successful defendant. Now, it is mandatory.
Additionally, defendants may be entitled to “other compensatory damages” if they can show that the plaintiff brought the case to harass, intimidate, punish, or maliciously inhibit free speech, petition, or association rights. Compensatory damages compensate the defendant for any other harm they suffered. Punitive damages also may be available where the plaintiff brought the case “for the sole purpose” of harassing, intimidating, punishing, or maliciously inhibiting free speech, petition, or association rights.
Can a Lawyer Help?
Plaintiffs considering defamation actions must be careful to not run afoul of the new anti-SLAPP law. Even if they are defamed, the risk of having a suit challenged on the basis of being one against public participation can cause them to both lose the case and pay their adversaries' attorneys' fees and costs. From defendants' perspective, they now have a useful tool to challenge these actions and protect their free speech rights, but they must present a strong case.
If you are being sued for defamation, and believe that your speech is protected by the First Amendment to the U.S. Constitution, or the equivalent free speech protection in your state constitution, a government attorney specializing in libel or slander defense, or free speech law, will be able to advise you about the protections provided by the laws of your state, and will be able to file an Anti-SLAPP motion, giving you a good chance of getting the lawsuit dismissed.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
