Governmental entities and anti-SLAPP statutes

Earlier this year, in Henne v. City of Yakimathe Washington State Supreme Court held that the City of Yakima could not move under that state’s anti-SLAPP statute where it was the recipient – rather than speaker – of the challenged speech.  It is not clear if the outcome would have been different under the DC anti-SLAPP statute.

The facts are as follows:

Henne, a Yakima police officer, filed a lawsuit against his employer, the City of Yakima, alleging that, when several other officers made complaints about his behavior, resulting in an internal investigation, that constituted a hostile work environment.  Henne’s suit alleged that Yakima negligently hired, trained and supervised the officers who made the complaints.

The City of Yakima filed an anti-SLAPP motion, arguing that, because the lawsuit was based on speech (the complaints of its officers), Yakima was entitled to dismissal under the state’s anti-SLAPP statute.  After the trial court denied Yakima’s anti-SLAPP motion, it appealed under the statute’s expedited appeal provision.

The Washington Supreme Court held that the purpose and language of the state’s anti-SLAPP statute showed that it was intended to protect those who engaged in speech.  It held that Yakima could not invoke the statute because it did not utter the challenged speech, but was only the recipient of communications made by others:

Under the statute, Yakima would be free to intervene to “defend or otherwise support” the officers who submitted reports to the city, had Henne sued those officers.  Certainly the officers themselves, had they been sued, would have standing to challenge the lawsuit under [the anti-SLAPP statute].  But the statute does not contemplate that the government body to which speech is directed may itself be a “moving party.”

The Henne court noted that its conclusion was at odds with California decisions suggesting that “a defendant government agency may rely on California’s anti-SLAPP statute even where it appears from the facts of the case that the governmental agency received, rather than made, communications,” but held that the result was required because of differences between the two statutes:

the California anti-SLAPP statute states that it “shall be construed broadly.” . . .   Our legislature phrased its findings more narrowly than California’s, emphasizing that the protection extends to “participants” – the actors who speak out on public affairs. . . .

Consequently, the Henne court concluded, under the Washington state anti-SLAPP state, “a governmental entity lacks standing to bring an anti-SLAPP motion . . . where the governmental entity has not engaged in the communicative activity on which the suit is based.”

To date, the District of Columbia has successfully invoked the DC anti-SLAPP statute in one case: Payne v. District of Columbia.  There, it was clear that the District was being sued for speech allegedly made by its Chief Financial Officer.  As such, the Henne question of whether a governmental entity can invoke the anti-SLAPP statute where the lawsuit stems from its receipt – rather than issuance – of the challenged speech, was not addressed in Payne.

DC Code 16-5502(a) provides that “[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest . . .”.  The language “arising from an act in furtherance of the right of advocacy on issues of public interest” does not, on its face, appear to require that the movant be the speaker.

However, the Washington anti-SLAPP statute contains similar language, providing that “[a] party may bring a special motion to strike any claim that is based on an action involving public participation and petition. . .”.  The Henne court nevertheless concluded that this provision was limited to “a person engaged in some communicative activity” because the statute’s subsections defining what constitutes “public participation and petition” were all directed to the speaker.

As such, it remains an open question whether a recipient of speech could move under the DC anti-SLAPP statute against a suit arising out of that communication.  While courts in the District have looked to California in interpreting the DC anti-SLAPP statute, the C4ADS court recently noted the difference in the two jurisdiction’s statutes in departing from California law.  (In this regard, it is worth noting that the DC anti-SLAPP statute does not include the “shall be construed broadly” language found in the California statute).

Takeaway: the Henne decision seems shortsighted to me.  The purpose of an anti-SLAPP statute is to encourage speech, and provide a means of responding to lawsuits that threaten that speech.  An anti-SLAPP statute should be available to all lawsuits that flow from speech – whether the defendants are the speakers, recipients or bystanders.  Otherwise a recipient might be less willing to engage in speech, which results in a chilling effect.

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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