In late May 2015, the Washington Supreme Court became the first state to find an anti-SLAPP statute unconstitutional, striking down the rule codified as RCW 4.24.525.

At the time (and likely still today), free speech advocates expressed their disappointment in the ruling, believing that the state of Washington would leave media members and others who speak out publicly unprotected from lawsuits aimed at them for their public comments.

Nevertheless, it was a significant ruling and one that is worth a closer look.

Anti-SLAPP Overview

SLAPP is an acronym referring to a “strategic lawsuit against public participation,” used as a means to silence critics. As stated in the notes accompanying RCW 4.24.525, SLAPPs are “typically dismissed as groundless or unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their productive activities.”

The general idea is that a large company or other deep-pocketed plaintiff, unhappy with another’s public comments about them, will attempt to bury the defendant in costly litigation—often through a defamation and/or tortious interference-based lawsuit—and effectively chill the defendant’s speech.

In order to deter the filing of frivolous lawsuits, brought solely to burden defendants with high legal expenses and keep them from further speaking out against the plaintiffs, many states began enacting anti-SLAPP statutes in the early 1990s. Today, more than half of states have such statutes.

In Davis v. Cox, 183 Wash. 2d 269, 351 P.3d 862 (2015), the case in which Washington struck down its anti-SLAPP law, the Washington Supreme Court noted that “[a]nti-SLAPP statutes punish those who file lawsuits that abuse the judicial process in order to silence an individual’s free expression or petitioning activity.”

And the punishments are not light.

In states that have enacted anti-SLAPP statutes, moving parties who are successful in their efforts to dismiss the claims brought against them through SLAPPs are generally awarded—at minimum—litigation costs and attorney fees. In Washington, for example, there was also an award of $10,000 in statutory damages, prior to the state’s top court declaring the statute to be unconstitutional in its entirety.

RCW 4.24.525

In Washington, to prevail on an anti-SLAPP motion under the state’s statute, a moving party had the burden of showing “by a preponderance of the evidence” that the claim brought against him or her was based on an action of “public participation and petition” (e.g. statements in a public forum on an issue of public concern).

If this burden was met, it would then shift to the responding party (the plaintiff) to show “by clear and convincing evidence a probability of prevailing on the claim.” According to RCW 4.24.525(4)(c), the court was to consider “pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

If the responding party met this burden, the case would proceed to trial, or else the moving party would be entitled to an award of costs, fees, statutory damages and potentially additional relief, as determined by the court.

Under the statute, as soon as an anti-SLAPP motion was filed, discovery was stayed and remained stayed until the motion was resolved.

Davis v. Cox

On May 28, 2015, the Washington Supreme Court invalidated the state’s anti-SLAPP statute after finding it violated the right to trial by jury under article I, section 21 of the Washington Constitution.

According to the court, the statute’s language did not strike the required balance “between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern.”

Specifically, because the statute required trial judges to weigh the evidence and make factual findings, the court found this “invades the jury’s essential role of deciding debatable questions of fact.”

“Thus, RCW 4.24.525(4)(b) creates a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial,” the court held.   “Such a procedure invades the jury’s essential role of deciding debatable questions of fact.”

To date, Washington has not enacted a revised anti-SLAPP statute.

Takeaways

Washington’s decision to strike down its anti-SLAPP statute was significant in that it was the first state to take such action, as states have increasingly been enacting anti-SLAPP statutes through the years and as the push for a federal anti-SLAPP statute continues.

Many other states’ anti-SLAPP statutes require courts to determine the sufficiency of plaintiff’s legal claims in response to anti-SLAPP motions, but without asking the judges to weigh the evidence.

Anti-SLAPP statutes—even the originally drafted RCW 4.24.525—are well-intentioned, helpful tools in protecting people’s right to speak on matters of public concern. Yet it is important that these laws are appropriately crafted and also do not restrict plaintiffs from filing legitimate, non-frivolous lawsuits.

SLAPPs are usually based on defamation claims, but companies often have genuine defamation-based claims (including those arising out of online speech), which are not brought to harass anyone, but are instead aimed at protecting their reputations.

Nevertheless, in the event that a plaintiff brings a well-intentioned internet defamation lawsuit in a state with an anti-SLAPP statute, it is important that the plaintiff carefully reviews the language of the applicable statute and ensure that it has a legal basis for its claims. It is crucial that a plaintiff has evidence prepared to survive an anti-SLAPP motion, as the consequences of losing can be financially steep.

The Washington Supreme Court’s ruling in Davis v. Cox was not the court’s only decision in 2015 that left free speech advocates feeling disappointed.  In September, the same court handed down a favorable ruling in a case involving the federal Communications Decency Act.