Are Anti-SLAPP Statutes The Elephant In the Room?

Last year, I noted that several judges around the country were expressing concern that state anti-SLAPP statutes were being applied to cases that did not appear intended to “chill” legitimate speech. For example, a Texas state appellate judge, in a section of his concurring opinion titled “The ‘Elephant In the Room,’” lamented the breadth of the Texas anti-SLAPP statute and that it was being used to dismiss suits that were not actual Strategic Lawsuits Against Public Participation:

while the TCPA might indeed capture some “legal actions” that are truly SLAPPs as conventionally understood, the vastness of the range of “legal actions” that are deemed suspect by this statutory framework and ultimately excised from the civil justice system ensures that the Act will operate arbitrarily in relation to any “anti-SLAPP” goal in many, if not most, of the cases to which it applies.  This case is a good illustration.

Serafine has not preserved any contention that the Blunts asserted their counterclaims with the objective of punishing or chilling her exercise of expressive freedoms, as might be characteristic of a SLAPP. Her argument, rather, is merely to the effect that the TCPA, as written, provides her (however fortuitously) with a tactical advantage that she is entitled to wield in her lawsuit against the Blunts. The Blunts’ sin, in other words, is not that they asserted a “legal action” that anyone contends is truly a SLAPP in the conventional sense, but merely that they pleaded compulsory counterclaims that happened to implicate the TCPA (at least in part) and that they could not overcome the “prima facie case” requirement.

Last month, the Massachusetts Supreme Judicial Court (Massachusetts highest state court) reached the same conclusion about that state’s anti-SLAPP statute. It went further, however, and interpreted the statute to now allow a party opposing an anti-SLAPP motion to prevail if it can show that the suit was not “brought primarily to chill the movant’s legitimate exercise of its right to petition.”

In Blanchard v. Steward Carney Hosp., after an investigation into alleged patient abuse/neglect, the hospital terminated several nurses. The hospital president then made a statement to the Boston Globe which suggested that the terminated employees had been fired, in part, because of their culpability. Nine of the terminated nurses filed suit for, among other things, defamation. The trial court denied the hospital’s anti-SLAPP motion to dismiss. After the intermediate appellate court reversed, the Supreme Judicial Court agreed to hear the case.

The court first held that, because the hospital’s license was under review at the time the hospital president made the statement, the hospital carried its burden of showing that the statement was subject to the Massachusetts anti-SLAPP statute (because statement might have been read by government decisionmakers and thus could be construed to be in furtherance of the hospital’s petitioning rights to preserve its license). Under the court’s well-established caselaw, this showing shifted the burden to the nurses to show that the hospital’s statement lacked any reasonable basis in the law or fact (i.e., was a sham).

The court observed, however, that “the present framework does not provide adequate means to distinguish between meritless claims targeting legitimate petitioning activity and meritorious claims with no such goal. It is only the former, the actual ‘SLAPP’ suit, that the Legislature intended to stop early in its tracks.”  The court termed this – wait for it – the “proverbial unacknowledged elephant in the room”:

That problem is whether the plaintiff nurses’ defamation claim is, in fact, a “SLAPP” suit at all. Otherwise put, even if it were shown that the Boston Globe based portion of the nurses’ defamation claim arises from and is, in that limited sense, solely based on their hospital employer’s quite legitimate petitioning activity, it nevertheless remains unclear whether this qualifies as a disfavored “SLAPP” suit meriting early dismissal. Under current case law, the inquiry ends without permitting confirmation that the fundamental statutory concern is satisfied, much like the proverbial unacknowledged elephant in the room.

The court explained that the current approach “leaves open the possibility that a special movant, whose legitimate petitioning activity forms the basis of a meritorious adverse claim that is not primarily geared toward chilling such petitioning, may nonetheless use the special motion to eradicate that nonmoving party’s adverse claim.” The court was troubled by this prospect and, as a result, held that, going forward, the nonmoving party could defeat the special motion to dismiss if it showed that:

the claim was not primarily brought to chill the special movant’s legitimate petitioning activities. To make this showing, the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its primary motivating goal in bringing its claim, viewed in its entirety, was “not to interfere with and burden defendants’ petition rights, but to seek damages for the personal harm to it from the defendants’ alleged acts.”

As readers of this blog know, nonmoving parties in the District of Columbia have regularly argued that anti-SLAPP motions should be denied because their suit was not intended to stifle speech. The DC Court of Appeals rejected this argument in Burke II. There, the Superior Court judge initially declined to award the successful anti-SLAPP movant his attorneys’ fees, reasoning that the complaint was not “a classic SLAPP suit” because it “was not intended to inflict costly litigation fees . . . as a means to stifle speech.” The Court of Appeals reversed, holding that it was improper for the trial judge to consider “the merits of, and motive behind, the underlying lawsuit”:

The threshold defect in this statutory reading is that nowhere does the Act refer to or define a “classic” SLAPP suit, as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . .  Nothing in this language, or in the words of the attorney’s fee provision, §16-5504 (a), implies that to qualify for fees the anonymous defendant successful in quashing a subpoena must have resisted a SLAPP claim “classic” or exemplary in nature, rather than one arising – solely but pivotally – from the defendant’s exercise of a special form of speech or advocacy. The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs.

It remains to be seen if the Blanchard court’s reasoning, and the similar concerns expressed by other judges, will cause the DC Court of Appeals to revisit this aspect of its Burke II decision. As always, stay tuned.

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.

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