What is a SLAPP lawsuit and how can an anti-SLAPP lawyer help you?
A SLAPP lawsuit, or a “strategic lawsuit against public participation,” is essentially a lawsuit that Big Money, like corporations or the super-rich, will often file against news organizations or other persons exercising their free speech rights in order to stifle free speech and prevent unfavorable information from reaching the public. The probability that the plaintiff will prevail on the claim is very minimal, but the real reason is to harass the defendant into shutting up.
The theory is that, rather than cough up thousands of dollars in attorney fees and costs to defend a defamation suit, would-be dissenters will simply back down and keep their mouths shut about matters of public import.
To Big Money, the exercise of the constitutional right to speak on matters of public concern is just an impediment to business. To them, the right of free speech is second to the bottom line.
For instance, when the New York Times began reporting on the Harvey Weinstein allegations, his attorney threatened to sue, stating, in part, “The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein . . . . We are preparing the lawsuit now.” When the Weinstein legal team threatened to sue the New York Times, their stock fell 2.5% in a single day! Of course, we all know how Mr. Weinstein’s criminal case turned out. But you can’t say they didn’t try.
SLAPP lawsuits aren’t intended to assert legitimate claims on the part of a plaintiff. The very point of a “strategic lawsuit against public participation” is to tie up a would-be defendant for reporting facts that the “plaintiff” doesn’t like getting out to the public, or for a plaintiff to gain an economic advantage over a defendant in a lawsuit to shut that person up.
Imagine for a second that you’re a person who has legitimately been harmed by a famous person, or a corporation, you tell a reporter your story, they report that story, and then the offending person sues you and/or the news outlet for millions of dollars, alleging defamation. But, really, there was no defamation because you were telling the truth, and they were reporting it. That’s a SLAPP suit in a nutshell.
Luckily, Colorado and some other states in the U.S. have enacted anti-SLAPP statutes to expand free speech and protect dissent.
California’s anti-SLAPP Statute
As is usually the case, California was one of the first states to pass a statute addressing lawsuits against public participation.
If you’re looking for guidance on how the Colorado law should or likely will be applied in the future, California’s anti-SLAPP statute will definitely give you insight.
Here’s a link to California’s anti-SLAPP statute.
Anti-SLAPP Laws and Colorado
Under the First Amendment, issues of public interest are meant to be heard and debated.
In passing the law barring SLAPP suits, the Colorado General Assembly said:
“The purpose of the anti-SLAPP law is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury.”
In other words, the purpose of Colorado’s anti-SLAPP law is to encourage and expand free speech, but to also protect the rights of victims, e.g. defamation and sexual assault plaintiffs, to file legitimate lawsuits in court.
Statements Protected Under Colorado’s Anti-SLAPP Law
The goal is to protect free speech.
Colorado’s anti-SLAPP law is designed to safeguard one’s First Amendment rights, while also protecting the rights of individuals who have actually been libeled, slandered, or otherwise harmed by the statements of another person.
It’s a bit long-winded, but there are four types of statements that the law considers an “act in furtherance of a person’s right of petition or free speech under the United States Constitution or the state constitution in connection with a public issue.”
- Any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;
- Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;
- Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
- Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Remember the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Colorado’s newly introduced law is basically just trying to flesh out what those First Amendment rights look like, especially the right to “petition the Government for a redress of grievances.”
How does Colorado’s anti-SLAPP statute work?
First, a defendant has to file a special motion to dismiss the plaintiff’s lawsuit. (Also called a “special motion to strike.”)
Let’s say a plaintiff files a defamation claim against a would-be defendant for a statement that the defendant said in a public hearing. For
Now, assuming that the statement that the environmentalist made was in an “act in furtherance of a person’s right of petition or free speech under the United States Constitution or the state constitution in connection with a public issue,” the environmentalist defendant would have to file a special motion to dismiss the plaintiff’s case within 63 days of the suit being filed (or with leave of the court to a later date).
How much time do I have to file a special motion to dismiss?
63 days after you’ve been served with a complaint, or a later date if the court deems it “proper.”
Like we just said, the Colorado anti-SLAPP statute gives you 63 days after you’ve been served with a complaint to file a motion to dismiss the plaintiff’s suit. Now, in most cases, you’ll only have 21 days or 35 days, depending, to answer the SLAPP suit. Therefore, don’t confuse the time period to answer a lawsuit with the timeframe to file an anti-SLAPP motion. You could be held in default.
Note that the court can, in its discretion, move the date to file your special motion to dismiss to a later date, but your lawyer has to move the court to do so prior to the 63-day deadline or you could be prevented from filing it at a later date.
Also, the motion must be scheduled for a hearing not more than 28 days after the service of the motion, unless the court needs more time to schedule it on its docket.
How do I file a special motion to dismiss a “strategic lawsuit against public participation?”
First, you have to determine if the written or oral statement at issue falls under the anti-SLAPP law.
Say you’re a defendant in a lawsuit and you’re being sued for something you wrote or said. The first thing you have to determine was whether or not such statement was “an act in furtherance of the exercise of a person’s right of petition or free speech under the United States Constitution or the state constitution in connection with a public issue.” Remember the four categories of speech we discussed earlier? For instance, did you say something in a public forum in connection with an issue of public interest? Then it’s likely protected speech under the Supreme Court standard.
Second, you have to file a motion in court.
Once you’ve determined that your lawsuit falls into at least one or more of the earlier four categories of free speech, you then file your special motion to dismiss.
Practice pointer: In California, the motion is called a special motion to strike; in Colorado, it’s called a special motion to dismiss. They are the same thing virtually.
How does the court rule on anti-SLAPP motions?
In strategic lawsuits against public participation, the court looks at the totality of the record.
When ruling on an anti-SLAPP motion, Colorado law says that “the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based,” to determine if the claim or counterclaims will survive an anti-SLAPP motion.
Basically, this means that the court will look at all of the facts alleged by the plaintiff and the defendant in their complaint, answer, response, etc., and any sworn statements from witnesses included in the case, to determine if the plaintiff’s case or the defendant’s counterclaims can go forward.
These cases can get pretty complicated really quickly, which is why we always recommend you hire an anti-SLAPP lawyer to help you out.
What happens if the court denies an anti-SLAPP motion?
If you lose your anti-SLAPP motion, you better seriously consider settlement.
Colorado’s anti-SLAPP statute was only recently passed by the General Assembly in 2019. Protection is given against SLAPP lawsuits and to protect the public interest and expand Free Speech.
If a court denies an anti-SLAPP motion, it has necessarily found that the plaintiff has established a reasonable likelihood that the plaintiff will prevail on the claim.
The fact that the court did not dismiss the SLAPP suit (at least what is being termed a “SLAPP suit”), is not admissible evidence at trial.
And, in our humble opinion, if a court has found that, “the plaintiff is reasonably likely to prevail on his/her claim,” you better start talking about settlement with your lawyer immediately. While a jury could make an opposite determination at trial, the universe, and definitely the judge, is probably sending you a message.
Furthermore, if the court finds that the defendant’s anti-SLAPP motion to dismiss is frivolous, or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney fees to a plaintiff prevailing on the anti-SLAPP motion.
In other words, if you’re a named defendant in a defamation lawsuit, you better be sure that you’re being sued – not because there’s any merit to the case – but because the plaintiff is trying to stifle your speech and assert its economic advantage over you in an effort to shut you up.
*NOTE: A defendant who survives a motion to dismiss may not be entitled to attorney’s fees if the case involves certain sections of the Colorado Open Records Act. These cases are rare.
What happens if the court grants the special motion to dismiss?
Going back to our example, let’s say the court found that the oil-and-gas company had no business filing a defamation lawsuit against our intrepid environmentalist and that the court granted the defendant’s motion to dismiss, effectively finding that the oil-and-gas company’s lawsuit was a SLAPP suit.
In that case, the prevailing defendant would be entitled to recover his/her attorney fees and costs. If you’ve ever litigated a case, you know those fees and costs can get into the tens of thousands of dollars pretty quickly.
An anti-SLAPP attorney has the statute on his side in most states, but your lawyer should know the ins and outs of anti-SLAPP laws, when and how to file a motion to strike, and when the court will allow such a motion. Based on this knowledge, your lawyer will be able to give you sound legal advice.
Once a motion to dismiss a SLAPP suit is filed, the case is frozen in time.
All discovery proceedings, including interrogatories, depositions, requests for admission, etc., are stayed upon the filing of a motion to dismiss a SLAPP suit. This essentially freezes the case in time, and the case remains frozen until the court issues its order. Note that the court can always order that specified discovery continue if it wants.
What if I don’t agree with the court’s decision?
You can file an “interlocutory appeal.”
Interestingly (or not), if you don’t agree with the court’s decision to grant/deny the motion to dismiss the SLAPP suit, you can appeal this decision to the Colorado Court of Appeals without a final determination on the merits of the case.
In legalese, this is called an “interlocutory appeal.” Essentially, you aren’t forced to wait until a jury has rendered its verdict before you can appeal the court’s decision to deny/grant the motion to dismiss.
There are certain lawsuits that Colorado’s anti-SLAPP statute does not apply to.
- An action brought by or on behalf of the state or any subdivision of the state enforcing a law or rule or seeking to protect against an imminent threat to health or public safety;
- Any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:
- The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member;
- The action, if successful, would enforce an important right affecting the public interest and would confer a significant benefit, whether pecuniary or non-pecuniary, on the general public or a large class of persons; and
- Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.
There are some other, more narrow exceptions relating to the financial industry that do not apply in most consumer plaintiff cases. If you’re interested in those, I would encourage you to read the language of the law here.
Don’t let Big Money bully you.
If you are speaking out on behalf of the public interest, and Big Money is trying to sue you into eternity just to shut you up, you might be in SLAPP lawsuit territory. The exercise of free speech should not be stifled by Slapp laws.
If you feel like you might be the victim of a SLAPP suit, call the experienced personal injury attorneys at Marathon Law today to schedule your free case evaluation.
Marathon Law: Because we go the distance. 303-704-1222
Even more general discourse on strategic lawsuits against public participation.
Whom does the anti-SLAPP law protect?
The statute protects people who have a cause of action and want to highlight a particular public issue under consideration, e.g., journalists who should be reporting without any fear of SLAPP suits.
The law is of no use if it cannot protect the people who are lawfully exercising constitutional rights. Instead, prior to the enactment of Colorado’s law, a writing made in connection with or an act in furtherance of freedom of speech would attract defamation and other lawsuits.
SLAPP suits are used to stifle discourse on issues of public interest or simply reduce the public’s interest.
They are in direct opposition to the right of petition or free speech in the courts by using a defendant’s written or oral statements made for the purpose of raising an issue of public interest against the defendant.
SLAPP suits allow clever plaintiffs to threaten defendants with the burden of attorney’s fees and costs.
The integral and stark difference between SLAPP suits and anti-SLAPP motions is that the burden of proof shifts.
In the former, the defendant needs to prove that a particular oral statement or writing was not defamatory. Whereas, in the latter, the plaintiff needs to prove that suit filed by him is not to deter the defendant. Both are official proceedings authorized by law. The prevailing defendant or plaintiff will be entitled to recover fees and costs.
Balancing the right to access the courts
Every litigant has the constitutional right to petition the courts. Colorado’s anti-SLAPP statute seeks to strike a balance between the right of the plaintiff and the right of the defendant to petition the court.
Colorado law not only gives a remedy to the defendant to address the public issue before the court. But it also helps the defendant to recover attorney’s fees and costs if the defendant wins his/her special motion to strike. It protects the right to freedom of speech under the United States Constitution, along with the right to petition the courts by balancing the interest of both plaintiff and defendant.
The major difference between the newly introduced Colorado statute and California’s anti-SLAPP statute is that California allows a “SLAPP-back,” provision meaning that the defendant can file a countersuit against the plaintiff.
Whereas, in Colorado, the special motion is available to defendants who are sued for any act in furtherance of the constitutional rights of petition before any executive or judicial body or speech in connection with a public issue.
Once a special motion to dismiss has been filed, the court will issue a stay of discovery that will remain until the court rules on the motion. C.R.S. § 13-20-1101(6). The court may, however, for good cause shown, permit specified discovery during this time.
Legal Strategy & Public Discourse
The concept of stifling public participation goes back a very long way. It is a legal strategy that can be used to legally curb dissent. The legal strategy was used by big players to stifle discussion on a public issue. When that legal strategy became successful, it was used more aggressively to stifle speech made in a public forum, which is a place open to the public, to make the speaker liable for defamation.
For example, California’s anti-SLAPP statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest. First, the defendant must show prima facie evidence that the plaintiff’s cause of action arises from an act by the defendant in furtherance of the defendant’s right of petition or free speech in connection with a public issue.
The Supreme Court of California interpreted the California Constitution in connection with the case of Park v. Board of Trustees (2017) 2 Cal.5th 1057. In that case, the Supreme Court of California again clarified that a special motion to strike does not arise where the protected activity is incidentally involved, rather the claim may be struck if the petitioning activity itself is the wrong complained of. In hybrid cases where statements are made in an official proceeding, or raise a public issue or concern that relates to or leads to the challenged conduct, the issues of freedom of speech and alleged unlawful conduct are interwoven and so are issues with the application of the SLAPP.
Cause of Action
While adjudging the cause of action, the Court should bear in mind whether the cause of action is founded on solid facts which are undisputed. If the cause of action is not clear or is brought on a bad faith basis, the case may be dismissed if the defendant makes a motion. The court will have to dismiss the case in order to protect the right to petition or free speech.
Lawsuits that discourage public participation can have a very detrimental effect on the right to petition and the constitutional tenets of freedom of speech. Public interest is kept in mind while enacting this legislation. Ultimately, it is the responsibility of the court to do justice, which can affect the right of the public to approach the court.
Hiring a local attorney or an attorney of your state who also has prior experience and regularly serves clients is always a good idea. Also, you should find an attorney who has succeeded on behalf of his or her clients in this area of law. Since every state has a different statute, it is better to hire an attorney who is conversant with the statute in your state.
A motion to strike under an anti-SLAPP statute should be filed at the right time and with enough evidence on record to show that the plaintiff’s defamation suit is intended to chill your free speech. If you succeed on your motion, the plaintiff’s defamation claims against you may be dismissed.
But your lawyer should have the serious technical know-how of when to file a motion to strike. Various countries and thirty-one states in the United States have enacted such laws to protect and preserve the right of the general public to petition the court.
In a sense, these statutes provide a strong sense of equality and restore the faith of the common man in the judicial system and contradict the perception that the judicial system is only for the bigwigs and wealthy class of citizens.
An attorney with prior experience in handling these matters will be of great help to any client-facing corporate giants, famous celebrities, and any other person or corporation seeking to hinder you from speaking the truth.