SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws

• Pages: 29-36
• Date: 01 January 2022
• Author: Shannon Jankowski,Charles Hogle
• Subject Matter: Derecho Público y Administrativo

Published in Communications Lawyer: Volume 37, Number 1, ©2022 by the American Bar Association. Reproduced with

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SLAPP-ing Back: Recent Legal Challenges to the

Application of State Anti-SLAPP Laws

By Shannon Jankowski and Charles Hogle

Shannon Jankowski is a staff attorney at the Reporters Committee for Freedom of the Press. She provides

amicus support for journalists and news organizations in federal and state courts in matters involving

access to courts and records, defamation, anti-SLAPP motions, newsgathering torts, and other First

Amendment issues impacting the news media.

Charles Hogle is a Media Litigation Fellow with the Reporters Committee for Freedom of the Press. Prior

to joining the Reporters Committee, he was a legal fellow with the ACLU National Security Project and a

law clerk to the Hon. Henry F. Floyd of the U.S. Court of Appeals for the Fourth Circuit. He is a graduate

of Northwestern University Pritzker School of Law.

Strategic lawsuits against public participation, or SLAPPs, are meritless lawsuits designed to chill

constitutionally protected speech on matters of public concern. To combat the silencing effect of SLAPPs,

and to protect the exercise of First Amendment rights, 31 states and the District of Columbia have

adopted anti-SLAPP laws.1 These laws provide critical protections for SLAPP defendants by establishing

mechanisms for the prompt dismissal of meritless claims and enabling defendants to avoid unnecessary

legal expense. But federal courts sitting in diversity disagree as to whether and how state anti-SLAPP

provisions apply in federal court. Now, a series of cases in the Second and Ninth Circuits pose new

challenges to the application of New York’s and California’s anti-SLAPP laws in those circuits—raising

questions of paramount importance to the news media and other targets of SLAPP suits.

SLAPPs and Anti-SLAPPs

Our system of self-governance—and the marketplace of ideas the First Amendment was designed to

protect—depends on open debate among an informed public. SLAPPs threaten this free exchange of

ideas. Even when SLAPP plaintiffs cannot prevail on the merits, they can punish their targets with time-

consuming and costly litigation, thereby deterring similar speech in the future. Indeed, SLAPPs are often

brought by the wealthy or inuential against the less-well-resourced or powerful. Would-be speakers are

forced into a perverse cost-benet analysis, weighing the value of participating in public debate against the

burden of defending against a lawsuit. SLAPPs also have a deleterious effect on the ability of journalists

to deliver the news, with the specter of frivolous lawsuits hanging over their reporting on the rich and

powerful.

“Anti-SLAPP” laws are generally designed to lower or eliminate the costs and other burdens of defending

against SLAPPs, including, for example, by providing mechanisms to obtain dismissal of meritless lawsuits

at the earliest stages of litigation, automatically staying discovery, permitting defendants to immediately

appeal a trial court’s denial of an anti-SLAPP motion, and permitting defendants who win their anti-

SLAPP motions to recover attorney fees and costs.2 Although the types of speech and activities protected

by anti-SLAPP laws vary from state to state,3 the majority cover a range of expressive activities protected

by the First Amendment,4 including news reporting on matters of public concern.