What Are They?
American law allows individuals to sue when they believe they have had their reputations unfairly damaged (defamation) or have had meritless lawsuits brought against them (malicious prosecution). Both of these types of suits are limited by the protections provided by the First Amendment. Nonetheless, there are numerous examples of parties suing others for petitioning, peacefully protesting, writing truthful news articles, or speaking out at public meetings. Often these suits are brought even though the plaintiff knows the lawsuit lacks merit and they would never win in court.
Why Do They Bring These Suits?
The simple answer is, in order to deter people from speaking out on matters the plaintiff would rather did not receive attention. Lawsuits are difficult and expensive to defend against, even if the case is meritless. The knowledge that speaking out can result in a lawsuit that would drain the resources of an ordinary person (and would be very expensive for most businesses to defend against), can have a chilling effect on public participation. Small local papers, citizen activist groups, even companies or professional associations seeking to uphold their professions’ standards can thus be effectively shut down, even though they are not doing anything wrong.
What Are the Solutions?
Many states have adopted “Anti-SLAPP” laws, statutes meant to combat these types of Strategic Lawsuits Against Public Participation. California’s Anti-SLAPP law, for example, allows a party being sued to file a special motion to strike a complaint that appears to hold a plaintiff liable for engaging in First Amendment conduct (like speaking at public meetings, writing articles on public matters, or filing a lawsuit). California’s expansive Anti-SLAPP laws protect certain conduct as well as speech, when that conduct is essential to advancing a party’s ability to exercise its free speech rights. This special motion to strike stops the case from going forward (and preventing costly discovery from being taken), until the court has a chance to determine if the plaintiff’s claims have any merit. If the party bringing the suit cannot demonstrate they have enough evidence at the start of litigation to show a reasonable jury could find for them, the lawsuit is thrown out.
A party who brings a successful Anti-SLAPP motion to strike recovers all their fees and costs for bringing the Anti-SLAPP motion. They may also file another motion to get all of the fees they expended on the entire litigation, as well as any other damages they can prove, paid by the other side. These rules constitute an important exception to the “American Rule,” which usually requires each party to bear their own attorneys’ fees in litigation, regardless of who prevails.
Not all states have adopted Anti-SLAPP laws to protect plaintiffs from meritless suits meant to chill their First Amendment conduct. But in states where these laws do exist, they can provide a powerful tool for parties that might otherwise fear being sued just for petitioning the government or speaking out on matters of public importance. Anti-SLAPP laws can remove any incentives a party has to bring meritless lawsuits in order to chill others’ exercise of their free speech rights. But these suits must be brought early in a lawsuit (within 60 days of the service of the complaint). Skilled counsel can help you understand the ins and outs of California’s Anti-SLAPP statute and whether it can provide relief in your lawsuit.
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