Earlier this year, the Illinois Supreme Court in Sandholm v. Kuecker overturned the dismissal of a lawsuit brought by a former high school athletic director and basketball coach against a group of citizens who campaigned before the school board and throughout the community to have the coach removed from his positions within the district.

As we reported in late 2010, the Illinois Appellate Court previously affirmed the dismissal of the lawsuit under the Illinois’ Citizen Participation Act (Act), 735 ILCS 110/1 et seq., holding that because the citizens were “participating in government” when they demanded the local school district remove the basketball coach from his position, they were protected from being sued for making defamatory statements criticizing the coach’s conduct. The Act protects citizens from liability for claims “based on their act(s) taken in furtherance of their rights of petition, speech, association or to otherwise participate in government.” So long as statements are made with the genuine aim at procuring a favorable government action, the Act protects citizens from liability for making such statements and prohibits lawsuits filed that allege claims based on a citizen’s participation in petitioning government. Typically, this type of law, referred to as an Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, applies to cases in which a developer sues a group of citizens for “intentional interference with prospective business” after the citizens oppose the developer’s plan and petition to have the local government stop the developer in some way. “SLAPP” suits, such as those brought by a developer as described above, are meritless suits filed with the intention not to win but instead to chill a defendant’s speech or protest activity and discourage opposition by others through delay, expense, and distraction.

The Appellate Court held that the Act barred the coach’s claims against the citizens because their statements were made in the course of participating in their local government. The Illinois Supreme Court, however, overturned that decision, on the basis that the plaintiff’s claims were not solely based on the citizens’ petitioning activity. The Court found the plaintiff pled genuine tort claims - alleging various defamation, false light, invasion of privacy and tortuous interference claims against the defendants - distinguishing this case from the types of litigation the law was intended to prevent.

The Supreme Court held that the test for determining whether a lawsuit should be dismissed under Illinois’ Anti-SLAPP statute is whether it is solely based on, relating to, or in response to any act or acts of the defendant in furtherance of the defendant’s rights of petition, speech, association, or to otherwise participate in government. The court found that the plaintiff’s suit did not in any way resemble a strategic lawsuit intended to chill participation in government or to stifle political expression.  Instead the suit was intended to seek damages for the personal harm to the plaintiff’s reputation from defendant’s alleged defamatory and tortuous acts.  The court stated that even though the citizens may have had a genuine purpose of achieving governmental action in their remarks, this purpose did not negate the plaintiff’s genuine tort claims against those citizens. The court found the legislative history of the Act instructive, revealing that the legislature intended to target only meritless, retaliatory SLAPPs and did not intend to establish a new absolute or qualified privilege for defamation or other intentional torts.  As a result, the court overturned the lower court’s dismissal of the case.

Under the court’s decision, defendants seeking to dismiss a case under the Act must now establish that the plaintiffs’ intent in filing the lawsuit is really an attempt to stifle the defendants’ speech as opposed to attempting to address a legal harm.