In September, Congressman Jamie Raskin (D-MD) introduced the SLAPP Protection Act of 2022, a landmark bill that will help protect the First Amendment rights of concerned citizens, journalists, and activists to participate in public debates about issues important to their communities.

The Uniform Law Commission describes “strategic lawsuits against public participation,” or SLAPPs, as the use of the civil litigation system “not to seek redress or relief for harm or to vindicate one’s legal rights, but rather to silence or intimidate citizens by subjecting them to costly and lengthy litigation.” 

SLAPPs are a common tactic used by the powerful to silence their critics. As our recent analysis shows, the fossil fuel industry has used SLAPPs and other judicial harassment tactics to target over 150 critics over the past decade. SLAPPs do not need to prevail in court to cause damage. Even if the court eventually dismisses the case, the victims suffer from the burden of being forced to undergo years of costly and stressful litigation against a much better-resourced opponent.

If passed, Congressman Raskin’s legislation will put strong anti-SLAPP protections in place across the federal court system. The SLAPP Protection Act will provide courts with the tools to quickly identify and throw out SLAPPs while keeping safeguards in place to protect plaintiffs who are seeking access to justice. In this article, we take an in-depth look at the legislation and the impact it will have.

Anti-SLAPP laws tend to have overwhelming bipartisan support.

Anti-SLAPP laws are one of the most important ways to discourage the use of SLAPPs. Currently, 32 states and the District of Columbia have these laws in place; most have passed with overwhelming bipartisan support. In 2022, the Public Participation Project, a nonpartisan free speech organization, reviewed the voting records for state anti-SLAPP laws and found that all but four passed with unanimous support or minimal opposition.

To end the SLAPP threat, we need universal coverage of SLAPP laws across all state and federal jurisdictions.

However, the current coverage of anti-SLAPP laws has proved insufficient to stop the use of SLAPPs. At the state level, existing laws vary in scope and quality, leaving some of the most vulnerable community leaders, activists, and journalists without coverage. The Uniform Law Commission is helping to fix this problem. In 2020, the Commission adopted a model state anti-SLAPP statute and is now advocating for its adoption across the country.

Yet there is no federal anti-SLAPP statute that provides consistent protection across federal courts. Most federal circuits have no SLAPP protections whatsoever. A handful of federal circuits allow state anti-SLAPP statutes to apply in diversity jurisdiction cases, but even those courts do not have protection in federal question jurisdiction cases. Having universal coverage is important because many SLAPP filers have engaged in forum shopping to evade anti-SLAPP laws. 

The SLAPP Protection Act follows the same general approach used at the state level but with some important modifications.

Anti-SLAPP laws generally have three goals: (1) protect SLAPP victims by allowing courts to rapidly identify and dismiss these attacks in order to minimize the damage they cause, (2) punish those who file SLAPPs by requiring them to pay the legal fees of their target, and (3) deter future SLAPPs by imposing consequences on SLAPP filers and minimizing the effectiveness of this tactic.

Like most state anti-SLAPP laws, the SLAPP Protection Act allows defendants to file a special motion to dismiss early in the civil litigation process in order to minimize the costs imposed by the SLAPP. The court reviews the motion on an expedited basis. The court also stays discovery while the motion is being considered in order to avoid an invasion of the SLAPP defendant’s privacy. In most cases, a defendant who wins the motion can recover the cost of attorney’s fees from the plaintiff.

This process will look familiar to lawyers who have litigated SLAPP cases at the state level. However, the SLAPP Protection Act contains some important modifications, which are discussed in more detail below.

In order to be consistent with the Federal Rules of Civil Procedure, a federal anti-SLAPP law needs to balance plaintiffs’ and defendants’ rights.

An anti-SLAPP motion for federal courts needs to align with the Federal Rules of Civil Procedure (FRCP). The courts and Congress developed the FRCP through a robust process that is based on the principle of fairness – the notion that the civil litigation process does not provide an inherent advantage to plaintiffs or defendants. 

The challenge with anti-SLAPP laws is that they are designed to benefit only defendants. To navigate this challenge, the SLAPP Protection Act builds on, rather than replaces, the protections already provided in the FRCP. The legislation includes, for example:

• A safe harbor for plaintiffs who inadvertently file claims that bear the hallmarks of a SLAPP.
• A process for courts to review the anti-SLAPP motion that is built on the evidentiary standards already well-established in FRCP Rule 56 on summary judgment.

• Reliance on the appeals process built into the FRCP rather than creating a separate interlocutory appeals process.
• Rebuttable presumption of fee-shifting, rather than mandatory fee shifting, as an additional safeguard to ensure that plaintiffs whose claims are dismissed under the anti-SLAPP motion have an opportunity to show that their claims were not intended to be abusive.

The SLAPP Protection Act focuses on SLAPPs specifically, whereas state laws tend to cast a wider net.

Most state anti-SLAPP laws have a broad scope that goes well beyond the commonly understood definition of SLAPP as a form of abusive, retaliatory litigation. State anti-SLAPP laws provide comprehensive protection for SLAPP defendants, but defendants in other First Amendment cases use them widely, as well.

There is a difference between “meritless cases that are filed in good faith” and “meritless cases that are abusive.” State anti-SLAPP laws do not necessarily make that distinction. Instead, existing anti-SLAPP laws in the United States treat all meritless cases the same without looking at any of the telltale signs of whether they are actually “abusive.” 

The legislators who first drafted anti-SLAPP laws had practical reasons for blurring this distinction. Because SLAPPs masquerade as legitimate lawsuits, it is difficult to craft a law that weeds out only abusive lawsuits. It would be unfair and counterproductive to force SLAPP victims to demonstrate the plaintiff’s abusive intent in order to have the claims dismissed – at minimum this would require lengthy and expensive discovery that would undermine the purpose of an anti-SLAPP motion. 

As a result, most anti-SLAPP laws create some collateral damage – some plaintiffs who did not actually file SLAPPs have their lawsuits punished as SLAPPs. 

But this approach is worrisome from the plaintiff’s perspective. State anti-SLAPP laws that punish meritless cases brought in good faith can deter certain types of public interest litigation. Courts regularly dismiss lawsuits for being meritless. Everyday citizens and poorer communities who want to hold wealthier, better-resourced individuals and corporations to account might not do so, out of fear of having to pay for their opponents’ legal fees if their case is found to be meritless. At a Congressional hearing on SLAPPs in 2016, for example, a legal scholar described the potential deterrent effect of anti-SLAPP laws on civil rights cases.

Some recently adopted state anti-SLAPP laws, such as Washington’s and Texas’s, have started to take an approach that balances the rights of plaintiffs and defendants. Another common law jurisdiction, the United Kingdom, also announced in 2022 that it would be using a balanced approach to address SLAPPs: “We believe this strikes the right balance – properly identifying SLAPPs, while allowing genuine claims to continue, and deterring those who seek to exploit our courts with action deliberately designed to ramp up costs and waste time.”

In federal courts, a balanced approach is consistent with the underlying principles of fairness in the Federal Rules of Civil Procedure. The SLAPP Protection Act allows dismissal of claims under the anti-SLAPP motion regardless of whether there is evidence of abusive intent. However, the legislation includes several measures to minimize collateral damage on genuine claims:

• Uses a “rebuttable presumption” of fee shifting, rather than mandatory fee shifting, which provides the plaintiff who loses an anti-SLAPP motion with the opportunity to show that they did not have abusive intent.
• Uses a definition of “matter of public concern” that focuses on protecting the types of activities that have historically been the most vulnerable to SLAPPs.
• Includes exemptions that carve out protections for certain types of public interest claims, so that plaintiffs in these cases do not have to worry about anti-SLAPP penalties if the court determines their claims to be meritless.

The choice of exemptions is ultimately one of policy judgment. Different stakeholders will have different perspectives on which types of public interest claims are likely to be deterred if they are left unprotected. As this legislation proceeds, members of Congress will undoubtedly debate whether this is the right list of exemptions.

This legislation helps to correct the effects of a federal circuit split on anti-SLAPP laws.

The purpose of the SLAPP Protection Act is to provide a floor, not a ceiling, for anti-SLAPP protections. Many states, such as California and Texas, already have strong and widely respected anti-SLAPP laws.

There is currently a circuit split among federal courts on the question of whether state anti-SLAPP statutes apply in federal diversity jurisdiction cases. The First, Second, and Ninth circuits consider portions of state SLAPP statutes to be substantive (because they protect First Amendment rights) and therefore applicable in federal diversity cases. In contrast, the Fifth, Seventh, Tenth, Eleventh, and D.C. circuits consider state anti-SLAPP statutes to be entirely procedural (because they involve civil litigation procedures) and, therefore, not applicable in federal diversity cases. The other circuits remain undecided.

Several litigants have petitioned the Supreme Court to resolve the circuit split. Most recently, private prison corporation CoreCivic Inc. petitioned the Court on this question with regard to a SLAPP that it brought against socially responsible investors at Candide Group LLC. To date, the Court has not agreed to take any of these cases.

Rather than resolve the circuit split, the SLAPP Protection Act addresses the underlying issue of how to provide anti-SLAPP protections across all federal courts without preempting state anti-SLAPP laws that already apply in federal diversity cases. The legislation includes a savings clause that says: “Except as provided for in this chapter, nothing in this chapter shall reduce or limit any substantive claim, remedy, or defense to a SLAPP under any other Federal law or under the laws of any State or locality.”

The savings clause would ensure that anti-SLAPP protections exist across federal courts:

• In federal circuits that have ruled that state anti-SLAPP laws are substantive, the courts would apply any existing state anti-SLAPP laws and, in some cases, would bolster these protections above current levels.
• In federal circuits that have ruled that state anti-SLAPP laws are procedural, those state anti-SLAPP laws would still not apply in federal diversity cases. However, the federal legislation would apply and provide strong protections where there currently are none.

Why EarthRights International supports the SLAPP Protection Act

EarthRights supports this legislation because a core part of our work is to protect environmental defenders worldwide. Around the world, environmental defenders face higher levels of attacks, ranging from assassinations to judicial harassment, than any other category of activist, reformer, or journalist. In the United States, we are members of the Protect the Protest coalition, which was created five years ago in response to several high-profile SLAPP cases targeting environmental organizations and activists. We described several of these cases in our recent analysis, The Fossil Fuel Industry’s Use of SLAPPs and Judicial Harassment in the United States.

But this legislation is not just for environmentalists. Community leaders, activists, journalists, and everyday citizens across the political spectrum rely on their First Amendment rights to speak up about important issues. The SLAPP Protection Act will help ensure that people can speak up and participate in decisions that affect their lives without fear of being silenced by the nation’s wealthiest and most powerful people.