Several state legislatures have expressed a concern that some people may use lawsuits, or the threat of lawsuits, to prevent people from exercising their rights to free speech. This is because lawsuits are expensive and some people would rather be quiet rather than face the possibility of paying an enormous sum to respond to a frivolous lawsuit. To address this, several states have passed Anti-SLAPP statutes that make it easier for a defendant to dismiss certain lawsuits and that discourage those suits to begin with.

Why should you read this post about Anti-SLAPP statutes?

You are getting sued because of your expression of free speech and you are interested in laws that could protect you.
You want to know if these laws make it illegal to slap someone in the face.
You are considering suing someone for something they said or disclosed and want to consider possible consequences of such a claim.

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When do Anti-SLAPP Statutes Apply?

Anti-SLAPP statutes vary by state since there is no uniform federal statute. For example, here is the Texas one and here is the New York one. Many apply to lawsuits that concern “the defendant’s rights of association, free speech, or petition.” These are often defamation lawsuits, alleging that someone made a false statement in the press that damaged them. But not always - at least one court has held that the statute could apply to a legal malpractice case since it arose from a lawyer’s communications with opposing counsel that disclosed allegedly harmful information.

Once a defendant is the subject of a lawsuit that concerns their free speech rights, she can move to dismiss the case pursuant to the Anti-SLAPP statute. After doing that, the plaintiff then has the burden to submit evidence and legal argument to show that the lawsuit does not make frivolous arguments in an effort to silence critics through the threat of a lawsuit.

If the plaintiff meets her burden, the lawsuit proceeds. But if the plaintiff fails to meet her burden, the lawsuit may be dismissed and the defendant may even recover her legal fees. The threat of paying those legal fees may serve as a deterrent for plaintiffs to use lawsuits as a threat against free speech.

Anti-SLAPP Statutes May Not Apply to Commercial Speech

Anti-SLAPP statutes do not apply to every lawsuit involving speech. Instead, just as the right to free speech has exceptions for commercial speech, these statutes do, too.

For example, in California, the statute expressly does not apply to statements by a business person about a competitor or by a business to prospective customers. And the Texas Supreme Court has held that its state’s statute does not apply to statements made to prospective or actual customers. These exceptions follow from legal precedents that hold that free speech protections are not as strong for commercial speech as they are for political speech.

This means that a customer can sue a seller of services about the statements it makes without the seller claiming the lawsuit should be decided quickly or require more evidence because it likely conflicts with its right to free speech.

Anti-SLAPP Laws in Practice

Anti-SLAPP statutes have enabled a lot of defendants to avoid more substantial burdens in litigation. Over 75% of defendants who assert an Anti-SLAPP defense prevail, according to a law review article.

This success rate could be connected to the high rate of abuse of the legal system by plaintiffs who want to silence critics. Still, several plaintiffs have challenged Anti-SLAPP laws in court, arguing that they are unconstitutional since they may deprive them of their day in court. Courts have struck down versions of these statute, prompting states to re-pass them in ways that balance the rights of both plaintiffs and defendants.

California also modified its anti-SLAPP law to ensure that it was not being abused by defendants who wanted to evade legitimate lawsuits. New York, however, recently expanded the scope of its law.

In practice, however, Anti-SLAPP laws do not prevent people from filing lawsuits. And even litigating the defense will cost a defendant a substantial amount of time and money.