A Cure for a "public Concern": Washington's New Anti-slapp Law

• Publication year: 2021

A CURE FOR A "PUBLIC CONCERN": WASHINGTON'S NEW ANTI-SLAPP LAW

Tom Wyrwich

Abstract: In March 2010, the Washington State Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. The new Act fills a critical void in Washington's protection of free expression and petition rights. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. This Comment offers interpretive guidance for Washington courts by examining the new law, its legislative history, its constitutional underpinnings, and its relationship to the influential California anti-SLAPP statute on which it is modeled. Although the Washington Act shares many identical provisions with the California statute, Washington's Act does include important deviations from the California model. This Comment embraces long-standing canons of statutory construction to argue that the Washington Act's deviations reveal a specific intent to reject certain aspects of the California law. Among these specific rejections is the California law's broader coverage of protected free expression. While California protects expression related to "issues of public interest," the Washington Act protects expression related only to "issues of public concern." Washington courts interpreting this important provision should reject California case law and embrace the "public concern" test established by the United States Supreme Court in Connick v. Myers, a test that already occupies solid ground in Washington case law.

INTRODUCTION

The right to speak on issues of public concern lies at the heart of the freedom of speech. (fn1) That freedom, guaranteed by both the federal and Washington State constitutions,(fn2) protects the right to criticize the military draft,(fn3) provides a shield for newspapers to publish classified documents,(fn4) and shelters from liability groups who choose to stage peaceful boycotts.(fn5) Despite these important protections of free expression rights, the state and federal constitutions fail to protect citizens from the exorbitant legal expense necessary to defend these rights in court. It is this failure that the Strategic Lawsuit Against Public Participation (SLAPP) exploits.

Plaintiffs file SLAPPs to interfere with the protected free expression of defendants. (fn6) A SLAPP has little or no chance of success in the courts.(fn7) Even without a successful court judgment, though, a SLAPP accomplishes an ulterior goal: forcing defendants who legally exercised their constitutional rights of free expression into costly litigation that chills their current and future involvement in public debate.(fn8) Until July 2010, Washington provided few options to dismiss these frivolous lawsuits.(fn9)

With the Washington Act Limiting Strategic Lawsuits Against Public Participation ("the Act" or "the Washington Act"),(fn10) Washington joined a growing group of states-including, most notably, California-that have extended anti-SLAPP protection to defend public exercises of free expression. (fn11) These laws allow individuals and companies, particularly media organizations, to not only dismiss lawsuits intended to frustrate their free expression rights, but also to secure attorney's fees and additional relief.(fn12)

Although the Washington Act is similar to California's anti-SLAPP statute, it is no mirror image. (fn13) The Act's legislative history, the Washington State Constitution's protection of free expression, and a comparison of statutory texts of the Washington and California laws all demonstrate that Washington courts should not interpret the two statutes in lockstep. (fn14) This Comment analyzes these sources and implores Washington courts to pay special attention to provisions of the California statute that the Washington State Legislature expressly adopted, modified, or ignored.(fn15)

Part I of this Comment introduces the necessity of anti-SLAPP laws to protect those who engage in acts of constitutional free expression. Part II explains the evolution of the Washington State Legislature's anti-SLAPP statutory scheme, from its groundbreaking "Brenda Hill Bill" in 1989 to the passage of the new act in 2010. Part III explores the many similarities between California's influential anti-SLAPP statute and the Washington Act. Part IV shows that, despite their many similarities, the Washington Act includes important deviations from the California model. Finally, Part V argues that long-standing canons of statutory interpretation demonstrate that the Washington State Legislature, in borrowing many provisions of the California statute, implicitly intended to adopt those provisions and their corresponding case law. Likewise, by modifying or ignoring certain California provisions, the Washington State Legislature specifically intended to reject those provisions and their judicial interpretations. In particular, the Washington State Legislature rejected language from the California law defining the scope of protected activities. While the California law protects speech related to "issues of public interest," the Washington Act protects only "issues of public concern." This explicit modification demonstrates the Washington State Legislature's intent to apply the "public concern" test from the U.S. Supreme Court's decision in Connick v. Myers,(fn16) a test that already occupies solid ground in Washington jurisprudence.

I. SLAPPS FRUSTRATE THE RIGHT TO SPEAK AND PETITION ON ISSUES OF PUBLIC CONCERN

The right to comment on issues of public concern occupies a central position in First Amendment law. (fn17) The right to participate in debate on public issues derives not only from the Free Speech Clause, but also the Petition Clause.(fn18) The Petition Clause has been extended to cover petitions and "any peaceful, legal attempt" to influence government action through any body-even the electorate. (fn19) It is those fundamental individual rights that a SLAPP aims to frustrate.

A. SLAPPs Frustrate Public Participation by Creating Costly Litigation for Defendants Speaking on Issues of Public Concern

The necessity for anti-SLAPP laws arises not out of the inability of state and federal constitutions to protect free expression, but rather the inefficiency with which the American judicial system provides that constitutional protection. In a SLAPP, the plaintiff bases the lawsuit on the defendant's free expression activities.(fn20) But unlike many reasonable challenges to free speech, claims in a SLAPP lack merit.(fn21) With no concern for the inevitable failure of the lawsuit, a SLAPP forces defendants-who have lawfully exercised their constitutional right of expression or petition-into costly litigation that may chill the defendant's future participation in the public debate.(fn22)

After studying more than 240 cases, University of Denver Professors George W. Pring and Penelope Canan coined the term "Strategic Lawsuit Against Public Participation."(fn23) In each of the cases they studied, the claim involved communications filed against nongovernment individuals or organizations on an issue of public interest or social significance.(fn24) The cases involved not only lawsuits traditionally associated with free speech, such as libel and defamation suits, but other actions such as business interference, conspiracy, or trespass.(fn25)

Because of the cost that it entails, the threat of lengthy litigation becomes vital to a SLAPP's effectiveness. (fn26) Plaintiffs rarely win in court but often realize their ultimate goal: to devastate the defendant financially and chill the defendant's public involvement. (fn27) Although there are actions that a SLAPP defendant can take either during or after litigation-a so-called SLAPPback(fn28)-courts have found that those measures will likely do little to deter the plaintiff.(fn29) The traditional safeguards against meritless actions tend to have little effect because a SLAPP filer may consider any sanction "as merely a cost of doing business."(fn30)

B. The Case of Camer v. Seattle Post-Ingelligencer Demonstrates a SLAPP's Costly Impact

The case of Susan Goldberg demonstrates the damage a SLAPP can inflict without anti-SLAPP legislation. In 1982, Goldberg worked as a reporter for the Seattle Post-Intelligencer.(fn31) On June 20, 1982, the newspaper published her story, 'Nuisance' Suits Clog the Courts.(fn32) The story addressed what several Seattle attorneys viewed as an issue of local concern: the effects and implications of pro se litigants filing frivolous claims in county courts.(fn33) The published article stated that, "correctly or not," area attorneys had leveled accusations that Dorothy Camer and Margaret Coughlin had filed nuisance suits. (fn34) Both Camer and Coughlin declined opportunities to speak with Goldberg for the story.(fn35) But on July 20, 1982, Camer and Coughlin alleged that the article defamed them in their joint complaint for libel.(fn36)

The trial court and appellate court both held that the plaintiffs, as a matter of law, did not present a valid claim for trial. (fn37) Goldberg's article was "undoubtedly opinion and therefore not actionable."(fn38) But the trial court did not dispose of the plaintiffs' case until almost two years after the plaintiffs filed their complaint. (fn39) The Washington Court of...