Florida's expanded anti-SLAPP law: more protection for targeted speakers.

• Author: Morley, Samuel J.
• Position: Strategic Lawsuits Against Public Participation

The 2015 Florida Legislature's passage of C.S./S.B. 1312 (1) expands the state's anti-SLAPP provisions giving courts procedural tools to throw out lawsuits early if primarily used to attack comment on public matters. Prior to the bill's passage, Florida's SLAPP protections were sharply limited to a narrow class of plaintiffs and activities. The 2015 law ("expanded" or "new law") extends SLAPP protections to cover private plaintiff suits and specified speech activities.

In light of this expansion, courts may see an uptick in early pre-trial, anti-SLAPP motions filed by a variety of defendants and in a variety of causes of actions. Because the new law leaves intact standards that have never been precisely defined and significantly broadens the scope of speech that is protected under the law, courts will be applying a law with little precedent behind it. (2) This article discusses the history of the Florida law and the new changes regarding anti-SLAPP legislation, and then analyzes some of the language (both new and old) that is important to the law's operation and scope as well as expedited procedures that remain under the new framework.

Background

SLAPPs (strategic lawsuits against public participation3) are legal actions brought against concerned citizens, bloggers, journalists, businesses, and other entities involved in speaking out on issues of concern to the public. In these suits, a plaintiff sues a speaker alleging defamation or other civil wrong not for the purpose of pursuing a case for damages but, rather, with the primary motivation to intimidate the target into silence by the sheer burden and expense of having to defend the suit. (4) If the target or others are silenced because of the lawsuit, the plaintiff "wins" in attacking defendant's First Amendment rights and the consequence is a limited or warped debate on an issue of public concern. (5) SLAPPs can be brought by different types of plaintiffs against a wide variety of targets. Neighbors opposing building projects may be sued by a land developer. Similarly, consumers or competing businesses voicing or posting complaints about a product or service may find themselves the target of a SLAPP by the seller or manufacturer. Even political statements made during campaigns can draw such suits. (6) Traditional sanctions available for frivolous actions (such as recovery of attorneys' fees) (7) are insufficient to counter SLAPPs because often they are unavailable until the conclusion of the lawsuit even though the mere filing and pendency of the lawsuit and its associated cost chills speech. Effective anti-SLAPP statutes make it easier and cheaper to terminate such a lawsuit at early stages.

A majority of the states now have some version of an anti-SLAPP statute, but they vary greatly, ranging from narrow to broad. (8) Some states provide SLAPP protections for only certain classes of persons or require that the targeted public participation be in connection with an issue under review by a governmental body. (9) Other states offer far more comprehensive protection of public participation or statements about any issue of public interest. (10)

Since combating SLAPPs early in the proceeding is important, almost all anti-SLAPP laws have some requirement for expeditious resolution of the motion. Many states also allow the defendant to recover reasonable attorneys' fees when it prevails on a SLAPP motion. (11)

History of Florida's SLAPP Laws

* The 2000 Law and Related Laws --In 2000, following many years of opposition to the measure by some groups, Florida enacted its original anti-SLAPP law, the Citizen Participation in Government Act. (12) When it finally passed, the result was a very narrow law that prohibited "governmental entities" from filing lawsuits (which in practice, was hardly, if ever, done) against a person or entity "without merit" and "solely because" the person or entity exercised the constitutional right "to petition for redress of grievances before the various governmental entities of the state." (13)

The act provided for expeditious hearing of either a motion to dismiss and/or summary judgment. It allowed the court to award actual damages to a defendant in a SLAPP suit by a governmental entity and required the award of attorneys' fees and costs to the prevailing party. (14)

* The 2015 Amendments--Unlike earlier anti-SLAPP efforts, the 2015 bill expanding Florida's anti-SLAPP law proceeded through the process in a bipartisan manner without controversy guided by its sponsors, Senator David Simmons (R) and Representative Jared Moskowitz (D). It received unanimous Senate committee and floor support and nearly unanimous support by the House. It was signed into law by Gov. Rick Scott on May 21, with an effective date of July 1, 2015.

The bill's language piggybacks on the general existing law but broadens the scope of SLAPP suits to include those brought by "persons" (not just governmental entities) and extends protected activities to public-issue free speech (not just petitioning activities). These and other changes to the defense are primarily contained in paragraph (3), which is noted as follows (underlined language new; struck through language deleted):

(3)[begin strikethrough](4)[end strikethrough] A person or [begin strikethrough]No[end strikethrough] governmental entity in this state may not [begin strikethrough]shall[end strikethrough] file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another [begin strikethrough]a[end strikethrough] person or entity without merit and primarily [begin strikethrough]solely[end strikethrough] because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, [begin strikethrough]the right[end strikethrough] to instruct representatives of government, or and [begin strikethrough]the right[end strikethrough] to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

Importantly, the term "free speech in connection with public issues" referenced above is defined in paragraph (2)(a) to "mean":

any written or oral statement that is protected under applicable law and is made' before a governmental entity in connection with an issue under consideration or review' by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.

The new law retains the mandatory award of attorneys' fees to prevailing parties, which now includes prevailing defendants in not only governmental SLAPP suits but also private party actions, as well. (15) The new law also retains the early pre-trial motions, affording SLAPP defendants a much earlier opportunity to dispose of these frivolous lawsuits. (16)

Analysis of the Law's Scope and Operation

Although the purpose of anti-SLAPP laws has always been clear--to stop abusive lawsuits brought to chill speech--the Florida law (both the original act and the 2015 amendments) implementing that purpose is less so. Florida's model, while clearly intended to provide broad protections for certain forms of speech, especially speech in media formats, is silent as to certain issues, which are often procedural in nature but can affect substantive rights. Unlike many states, Florida's version does not contain any special burden shifting, burden of proof, motion to strike, or discovery provisions to help flesh out the details of SLAPP dismissals. Further, as noted, there have been limited opportunities for Florida courts to weigh in on the earlier narrow law. However, the broad protections found in the statute must be interpreted with such requisite procedural protections for the law to achieve its purpose.

Generally, in reviewing this language for the scope of speech covered, (and other areas of the law) courts will be subject to rules of statutory construction. First, they will be obligated to give clear language its plain meaning to carry out the text of the law. When the language of a statute is clear and unambiguous, the language should be given effect without resort to extrinsic guides to construction. (17) Courts will construe unclear or conflicting language in a way that gives effect to the "polestar" of legislative intent, (18) with the caveat that there must be "hopeless inconsistency" before rules of construction can "defeat the plain language" of the statute. (19)

Further, lacking clear statutory guidance or their own precedent, Florida courts can consider how other state and federal courts have dealt with similar anti-SLAPP language. (20) California was one of the first states to adopt an anti-SLAPP law and it is a primary influence in other states including Texas, (21) and, directly or indirectly, Florida's model. With that in mind, California courts, as well as other state courts with anti-SLAPP laws, break down the analysis of the anti-SLAPP defense into two general steps or parts.

First, courts inquire if defendant's free speech or petitioning activity underlying plaintiff's cause of action is within the scope of activities protected by the anti-SLAPP statute in question, including whether it "arises from," or in Florida's version, is "primarily because" of the defendant's exercise of First Amendment activities. If that showing is made, the burden shifts to plaintiff to show his or her complaint has sufficient merit and, therefore, is unsuitable for early termination. (22) Although Florida's law is silent in regard to burden shifting or standards of proof, this general two-step framework seems appropriate in examining the law's purpose and is employed below.

Scope of Speech Activity Protected

In order to understand the extent of...