SLAPP stands for “Strategic Lawsuit Against Public Participation.” It was first used in the early 1990s to describe a disturbing trend. 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.
However, the plaintiffs in these cases were not really concerned with winning. They wanted to bury the defendant in litigation that they could not possibly afford to defend to force them into a settlement, which often required them to retract their criticisms. Such lawsuits were given the name “SLAPP.”
How Are Speakers Protected Against SLAPPs?
The fact that deep-pocketed entities were using the courts to suppress the free speech rights of their critics was a major cause for concern. Therefore, several states have passed laws protecting individuals and non-profit organizations from these lawsuits.
These laws, known as “Anti-SLAPP Laws,” allow defendants in these lawsuits to have the cases dismissed very early in the proceedings and to recover attorney’s fees through what’s known as an Anti-SLAPP motion. To prevail on such a motion, the defendant must show that the statement being sued concerns a “public issue.” This can refer to virtually any topic that might be of public concern. In this case, it is the plaintiff’s responsibility to demonstrate that it is likely to win its lawsuit on the merits, usually by showing that the statements it complains about are clearly false.
If the plaintiff fails to show that it is likely to win on the merits, the lawsuit is dismissed, and the defendant is usually awarded attorney’s fees and costs. A lawsuit is allowed to proceed if the plaintiff shows that they are likely to win on the merits. When the jury determines the case’s merits, the court’s earlier determination that they were likely to win cannot be used in any way. A plaintiff who successfully defeats an Anti-SLAPP motion usually can’t collect attorney’s fees unless they can show that the motion was frivolous.
Approximately half of the states in the U.S. have Anti-SLAPP laws. While they differ in terms of the degree of protection they provide, California and Oregon are generally viewed as the most protective.
What Are SLAPP Lawsuits?
In general, a SLAPP lawsuit is an action filed by a plaintiff that intends to silence, censor, or intimidate a defendant by burying them with legal costs in the hopes that they will either refrain from their activities or be pressured into giving up their criticism of the plaintiff due to mounting legal costs.
In most cases, the plaintiff of a SLAPP lawsuit is aware that they will not win the case and are simply filing the action to harass or deter the defendant from continuing with their activities.
Many types of legal actions can form the basis of a SLAPP lawsuit, such as a claim for defamation, invasion of privacy, nuisance, malicious prosecution, conspiracy, interference with contract, abuse of process, intentional infliction of emotional distress, and economic advantage.
For example, a public figure plaintiff may file a SLAPP lawsuit for defamation that alleges the defendant is making untruthful statements about them. The lawsuit filing will either intimidate the defendant into dropping their criticism of the plaintiff or the defendant will have the opportunity to file an anti-SLAPP motion against them.
A similar scenario will occur when a plaintiff files a SLAPP lawsuit based on malicious prosecution. Consider the case of an individual who was abused by a politician and reported the abuse to the police. After finding enough evidence to support the claim, the police submit their findings to the local prosecutor, who then files charges.
To preserve their reputation, the politician files a SLAPP lawsuit against the individual to scare them into dropping the charges. The individual (who is now the defendant in the SLAPP lawsuit) will either back down or can file an anti-SLAPP motion against the politician. The politician could also take it one step further by burdening the individual with additional legal expenses during the anti-SLAPP proceeding.
What’s Unique About California?
California accounts for a significant portion of SLAPP litigation in the United States. This includes both SLAPP lawsuits as well as related anti-SLAPP proceedings. There are two reasons why California has so many more cases involving SLAPP litigation than other states. The first is because celebrities use SLAPP lawsuits as a mechanism to silence information that would ruin their reputation.
The second reason stems from the fact that California has stronger anti-SLAPP regulations and protections than other states. This is also what makes California’s anti-SLAPP statute so unique. For example, unlike other states, California limits anti-SLAPP motions for cases involving class action lawsuits, commercial actions, and public interest issues.
In addition, California also expands the rights of victims of SLAPP litigation by allowing them to recover damages through counterclaims known as “SLAPPback” lawsuits. A victim who files a SLAPPback lawsuit may be able to collect both compensatory and punitive damages if they can successfully show that the party who filed the original SLAPP lawsuit abused the legal process.
California Anti-SLAPP for Employers
Regarding employment litigation, California anti-SLAPP law has increasingly been used by employers involved in employment retaliation and discrimination matters.
Specifically, public employers have more recently started using anti-SLAPP motions to challenge plaintiff employees who initially sued their employers for discrimination and retaliation in connection with a workplace investigation.
As an example of how anti-SLAPP motions may be used in employment cases, consider the following scenario:
- A government agency investigates an employee on behalf of an employer. Based on the investigator’s findings, the employee is terminated.
- After being terminated, the employee files a lawsuit against their employer, alleging that the investigation was conducted in retaliation for an incident that the employee complained about or based on discriminatory motivations.
- To prevent the employee’s employment retaliation or discrimination lawsuit from moving forward, the employer files an anti-SLAPP motion, claiming that they are “protected” from complaining about the employee and had a “right” to request the investigation.
- Suppose the employee does not have enough evidence to combat the anti-SLAPP motion. In that case, the court will grant the motion in the employer’s favor, and the original discrimination or retaliation lawsuit will be dismissed.
Similarly, the anti-SLAPP statute has also been used in California cases concerning hostile work environments. One employee claimed a colleague posted on-set photos with insulting captions about them on social media, promoting a hostile work environment. The colleague then filed an anti-SLAPP motion against the hostile work environment lawsuit.
Under the anti-SLAPP law, the court found that posting the photo was of public interest and denying the post would infringe on the colleague’s First Amendment rights. As a result, the original hostile work environment lawsuit was dismissed.
Can a Lawyer Help?
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.
An experienced government attorney can inform you about your rights under your state’s anti-SLAPP law and discuss your options for legal recourse. Your attorney can determine whether you should file an anti-SLAPP motion against the SLAPP lawsuit and can help you with the process.
Additionally, your attorney can also assist you in proving that your motion satisfies the elements required under the anti-SLAPP statute and can provide representation on your behalf during your anti-SLAPP hearing.
