The Washington Supreme Court this morning invalidated the state's broad anti-SLAPP statute, holding in a unanimous opinion that the law violates the constitutional right to a jury trial. The decision strikes the statute in its entirety, finding the constitutional problem undermined the law’s “mainspring.” The decision, Davis v. Cox, is the first in the nation to hold an anti-SLAPP statute unconstitutional.

Passed in 2010, Washington’s anti-SLAPP law, RCW 4.24.525, provided a mechanism for early and efficient disposition of lawsuits targeting “public participation and petition,” including speech and publication on issues of public concern. Like similar statutes in California and elsewhere, the law enabled defendants facing such claims to require the plaintiff to prove at the outset that the claim had merit. The law also deterred defamation and other claims targeting the exercise of First Amendment rights, by providing attorneys’ fees and a statutory award to defendants who won an anti-SLAPP motion.

Today’s state Supreme Court decision holds that the law violates the state constitutional protection for the right to trial by jury. Specifically, the court held that the requirement that a plaintiff “establish by clear and convincing evidence a probability of prevailing on the claim" meant that the trial court had to weigh and decide disputed factual evidence, which is the purview of a jury. Other courts, in Washington and elsewhere, have held that this provision is akin to a summary judgment procedure. But the Supreme Court declined to read RCW 4.24.524(4) that way, holding the law’s plain language requires a judge deciding an anti-SLAPP motion to rule on factual issues and dismiss even non-frivolous claims if they do not meet the “clear and convincing” standard. That, the court held, “creates a truncated adjudication of the merits of a plaintiffs claim,” and “invades the jury's essential role of deciding debatable questions of fact.”

DWT represents the defendants in the case, Davis v. Cox, which was brought by members of the Olympia Food Co-op against Co-op board members because of their stance on a boycott of Israeli goods. Defendants won an anti-SLAPP motion, but the case will now be sent back to the trial court.

Today’s decision is significant because it holds the anti-SLAPP statute unconstitutional on its face, meaning it cannot be applied in any circumstance. Because the basis is the state constitution, the Washington Supreme Court’s opinion is the last word, pending any future legislative fix. It therefore appears that, for now at least, media defendants and others have lost an important protection against baseless lawsuits targeting their First Amendment activities.