Alyssa Nielsen

Protection From Strategic Lawsuits Against Public Participation

Section I
In 1989, the Washington Legislature enacted an anti-SLAPP statute, the first state
to do so. In 2015, the Washington Supreme Court ruled the states anti-SLAPP statute
unconstitutional, the first state to do so (Davis v. Cox). Twenty-Eight states, the District
of Columbia, and Guam presently have anti-SLAPP statutes, but the statutes vary. For
instance, some protect reporters and some exclude reporters. The states that dont provide
the defense cite reasons such as the just outcomes of SLAPP cases; other summary
judgment protections; or, as in the recent case in Washington, the right to trial by jury.
SLAPP stands for Strategic Lawsuits Against Public Participation, generally
defamation lawsuits. The idea behind anti-SLAPP statutes is to provide protection against
frivolous lawsuits aimed at chilling speech. On average, a SLAPP suit takes 40 months to
resolve, so defendants too often opt out and never open their mouths again, even though
they would win the case (Baker & Hostetler LLP). Anti-SLAPP statutes allow the
defendant a chance to quickly strike the motion and collect money to pay his or her legal
costs, which are likely to be lower at the beginning than at the end, 40 months later.
If plaintiffs dont stand a chance to win SLAPP suits, why would they sue? They
want to discourage any negative speech directed towards them. Hence why anti-SLAPP
provisions are so important to advocates of free speech. As a nation, we value public
participation, and chilled speech directly threatens our liberty; so if we apply anti-SLAPP
statutes, we create another layer of protection for our beloved free speech. But are we
impeding on other rights?

Perhaps the most passionate advocates for free speech are journalists. They want
to do their job. They dont want to sit in court until the jury resolves the ungrounded suit
in their favor. Journalists assume the watchdog role, so they want anti-SLAPP provisions
so that they dont have to fear court while informing the public. However, in
Massachusetts, an anti-SLAPP statute exists, but it doesnt protect journalists (Fustolo v.
Hollander). What do anti-SLAPP laws protect, and is there any possibility for a federal
anti-SLAPP standard?

Section II
In 2001, Roy Rivenburg wrote a human-interest story for the Los Angeles Times
about Michael Thomas, and Thomas sued for defamation. He claimed that the article
suggested that he lied about his experiences in WWII and that his language-teaching
business was a sham. But the article was fairly written and proposed that readers come to
their own conclusions about Thomass character, so the L.A. Times called upon
Californias anti-SLAPP statute, and the court approved the motion. Thomas appealed the
decision, and the Ninth Court affirmed the appropriateness of the anti-SLAPP statute
(Thomas v. L.A. Times). Had the defamation lawsuit proceeded, the L.A. Times and
Rivenburg would have been burdened by unnecessary litigation, and they would be less
inclined to write honest stories about public figures.
While the anti-SLAPP statute protected the journalist in California, it failed to
protect a journalist in Massachusetts. In 2010, the Supreme Court of Massachusetts
resolved a case in which a reporter, who regularly wrote about a community group, was
sued by a real estate developer for defamation. She asked for the case to be thrown out

under the state anti-SLAPP statute, but the court denied the request, not because she
didnt present adequate proof of the suits frivolity but because she, as a reporter, didnt
qualify for the statutes protection. The court held that the statute was in place to aid
citizens right to petition and that the reporter was not petitioning as a citizen but just
doing her job. In the opinion, Judge Botsford dismissed the reporters claim that the
defamation suit would chill speech and harm the freedom of the press:
To the extent that Hollander [the reporter] fears a chilling effect on
reporters and press if they are not entitled to claim the protection of the
anti-SLAPP statutein cases where they write about contentious issues of
public concern, we note that the common law of defamationprovides
reporters with protection for both opinions and of, probable greater
relevance to this case, for fair reports of both government bodies and
organizations (Fustolo v. Hollander).
The comparison of Thomas v. Los Angeles Times and Fustolo v. Hollander
demonstrates a conflict of anti-SLAPP purpose. Should they protect the right to petition,
or should they protect the freedom of the press? Can the press not petition? What
constitutes as the press? Do reporters surrender their citizenship when they publish?
In Davis v. Cox, the decision that overturned Washingtons anti-SLAPP law, the
Washington Supreme Court held that the right to trial by jury outweighed the harm of
chilled speech, and it contested that the statute robbed the plaintiff of the right to petition,
which right Fustolo v. Hollander attributed to the defendant. The court compared the
anti-SLAPP process to the process of summary judgment and concluded that the antiSLAPP process required only likelihood not certainty and therefore was dangerous to the
plaintiffs rights. Judge Stephens wrote the opinion:
[T]he constitutional conundrum that RCW 4.24.525 [the Washington Act
Limiting Strategic Lawsuits Against Public Participation] creates is that it
seeks to protect one group of citizens constitutionalrights of expression

and petitionby cutting off another groups constitutional rights of

petition and jury trial. This the legislature cannot do.
Twenty-Eight states have anti-SLAPP statutes, and of those, there is no consensus
about the fundamentals: reporters or citizens, right of expression or right to trial by jury,
etc. The question begs to be asked: how do federal courts handle it?
When the First Circuit Court first faced the issue in 2010, it held that federal
courts had jurisdiction over a case in which Maines anti-SLAPP statute appeared. The
issue that court needed to resolve was whether the U.S. District Court for the District of
Maine could order that anti-SLAPP motions could not apply in federal court. Citing
decisions from the Ninth Circuit Court, the court ruled that the motion might apply, but
they punted on whether an order addressed to the merits of ruling under an anti-SLAPP
statute is immediately appealable (Godin v. Schencks).
The Ninth Circuit Court doesnt have an answer either; its ruled both ways. In
Hilton v. Hallmark Cards, a lovely Paris Hilton case, the court assessed Hallmarks antiSLAPP claim. Hallmark insisted that Hiltons defamation suit regarding a card with her
face on a cartoon waitresss body was baseless. However, the court ruled that since the
card was not transformative and was not reporting information (contrast with Fustolo v.
Hollander) Hallmark couldnt claim the anti-SLAPP defense. Court dates with Hilton
would resume. The ruling is less significant than the fact that the court ruled at all.
A year earlier, the same court dismissed an anti-SLAPP case because the Oregon
statute wasnt under the federal courts jurisdiction. But what were the out-of-state
scientists supposed to do to save themselves from enduring a frivolous defamation suit?
They of course won the suit but a year later and over three years after the original suit
was filed (Englert v. MacDonell).

Section III
After the Ninth Circuit ruled on Thomas v. Los Angeles Times, Thomas submitted
a writ of certiorari, and unfortunately the Supreme Court denied the case (Thomas v. L.A.
Times). If the Supreme Court had reviewed the case, we would perhaps finally have an
answer to the anti-SLAPP question, but because it didnt, we continue to struggle on with
existing state laws and ambiguous federal jurisdiction.
Recognizing the ambiguity, members of Congress have repeatedly tried to enact
nationwide anti-SLAPP statutes. In 2012, Arizona Senator John Kyl introduced
legislation that contained anti-SLAPP protection, but the bill died in committee (Trager
149). And in May 2015, Texas Representative Blake Farenthold presented another antiSLAPP bill. It was referred to a committee, and nothing has been heard of it since
(H.R.2304). Meanwhile, organizations continue to passionately advocate for a federal
anti-SLAPP law.
I dont see a federal law emerging in the future. The pattern of anti-SLAPP bills in
Congress is for them to die in committee, likely because no one can agree about its scope,
and the Supreme Court is rejecting anti-SLAPP cases. I believe that the Supreme Court
doesnt see this as a priority issue mostly because if the statute only is to help the winners
win faster then justice is still served without it.
Further, the pattern across the states is to further limit anti-SLAPP laws rather
than adopt and expand them. The most obvious example is Washingtons decision in
Davis v. Cox. In Illinois, the Supreme Court recently restricted its state anti-SLAPP laws
applicability (Trager 148), and in Massachusetts, the Supreme Court, in Fustolo v.

Hollander, took the protection away from reporters. Consequently, I believe it to be more
likely that anti-SLAPP statutes will be all struck or all narrowed to uselessness than that
the federal government adopt a nationwide statute.
I, however, disagree with the idea that we dont need a national ruling. After
studying these cases, I decided that if I were to become a journalist it would be in my best
interest to say nothing that might potentially lend to a defamation lawsuit, even a baseless
one. And that resolution is in definition chilled speech. I believe we need anti-SLAPP
laws so the First Amendment may serve its full purpose, and I believe there needs to be
national law to resolve the basics about if the protection is for citizens or for journalists
and, if only for one, who qualifies as a reporter. With increased media communication
between states, participants in the national conversation need nationwide protection. I do
concede that the issue should not be the highest priority in law, so Ill survive if it is not
resolved, and I should survive because it most likely wont be resolved, at least not in the
favor of the anti-SLAPP.

Works Cited
Baker & Hostetler LLP.A Uniform Act Limiting Strategic Litigation Against Public
Participation: Getting It Passed. Society of Professional Journalists. Society of
Professional Journalists. n.d. Web. 3 December 2015.
Davis v. Cox. Ed. Wn.2d. 183rd ed. No. 90233-0 Vol. SUPREME COURT OF
WASHINGTON. LexisNexis. Web. 2 December 2015.
Englert v. MacDonell. Ed. F.3d. 551st ed. No. 06-35465, No. 06-35531 Vol. UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. LexisNexis. Web.
3 December 2015.
Fustolo v. Hollander. Ed. Mass. 455th ed. SJC-10485 Vol. SUPREME JUDICIAL
COURT OF MASSACHUSETTS. LexisNexis. Web. 2 December 2015.
Godin v. Schencks. Ed. F.3d. 629th ed. No. 09-2324 Vol. UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT. LexisNexis. Web. 2 December 2015.
Hilton v. Hallmark Cards. Ed. F.3d. 599th ed. No. 08-55443 Vol. UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT. LexisNexis. Web. 3
December 2015.
H.R.2304 SPEAK FREE Act of 2015. Congress.gov. Library of Congress. n.d. Web.
3 December 2015.
Trager, Robert, et. al. The Law of Journalism and Mass Communications. Thousand
Oaks, California: CQ Press, 2014. Print.

Thomas v. L.A. Times Communs. L.L.C. Ed. Fed. Appx. 45th ed. No. 02-55343 Vol.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
LexisNexis. Web. 3 December 2015.