Anti-SLAPP Laws: Past, Present and Future

Strategic Lawsuits Against Public Participation (also known as “SLAPP” suits) are lawsuits filed simply to deter, chill, censor or harass people who have spoken or want to speak their minds. Though the term was first coined in the 1980s, SLAPP suits have been around as long as people have been communicating – or at least as long as the legal system has been used as a means for settling disputes over that communication. However, the impact of SLAPP suits has never been greater. With the Internet, everyone is a journalist or a columnist or a critic. But not everybody likes what is being said about them, and there are few barriers to filing a lawsuit when you think you’ve been wronged. The simple act of filing that suit has immediate and far reaching impact: the speaker, even if victorious, must spend time, money and other resources defending himself or herself in court; he or she may be deterred from speaking again in the future; others may be chilled from speaking as well.

In response, several states have passed “Anti-SLAPP” laws. These laws are designed to level the playing field for those speaking out on matters of public concern. Approximately 30 states and the District of Columbia have passed Anti-SLAPP laws, though there is a wide variation in their strength. These laws can not only accelerate the dismissal of a SLAPP lawsuit, thus saving a victorious defendant significant time and money (and stress), some also reimburse those defendants for attorney’s fees and court costs. Anti-SLAPP laws also serve as a strong and valuable deterrent to the filing of a SLAPP lawsuit in the first instance, which saves valuable public resources. At present, however, there is no federal Anti-SLAPP law, although several iterations, including the “Speak Free Act” (HR 2304 in the 114th Congress) have been introduced in recent years.

This course is presented by Evan Mascagni, the Policy Director for the Public Participation Project and Kevin M. Goldberg, a member at Fletcher, Heald & Hildreth, P.L.C, in Arlington, Virginia and a member of the Board of Directors of the Public Participation Project (the Public Participation Project is a 501(c)(4) organization dedicated to educating the public regarding SLAPPs and the consequences of these types of destructive lawsuits and to the passage of a federal Anti-SLAPP law). It reviews the history of SLAPP lawsuits and Anti-SLAPP laws passed in response, the recent and current status of Anti-SLAPP laws, and key lawsuits at the state level around the country. It examines the benefits of Anti-SLAPP laws and the best statutory language in existing laws to offer practical guidance in terms of identifying a SLAPP suit and possible use of an Anti-SLAPP law in defense. It also identifies the need for a federal Anti-SLAPP law and the legal considerations for and against the currently proposed Speak Free Act that are being debated in Congress. 

1. Explore SLAPP lawsuits
2. Understand Anti-SLAPP laws, where they exist and how they might be used in defending against a SLAPP lawsuit, taking into consideration the lack of applicability in all jurisdictions and variation in statutory language among jurisdictions
3. Examine possible “best practices” in statutory language that can be used to draft an Anti-SLAPP law in states where one does not exist or improve laws which do not offer adequate protection
4. Identify arguments for and against the proposed federal Anti-SLAPP law