Robbins: How anti-SLAPP statutes ward off legal bullying
Slap. To cause to strike with a motion or sound like that of a blow with the open hand.
SLAPP. Strategic lawsuit against public participation.
And anti-SLAPP? Well, read on.
The phrase “strategic lawsuit against public participation” doesn’t exactly roll off the tongue. But SLAPP? Well, that’s another thing entirely. SLAPP is crisp and sharp and was coined by a couple of law professors in the late 1980s. And a slappy little acronym it is! Precisely what it stands for though — the catchy shorthand notwithstanding — is not entirely intuitive.
So allow me to explain.
What the law professors did was to identify a trend of retaliatory lawsuits brought to intimidate and silence opponents and critics who spoke out in the public sphere. Think of it, if you will, of the familiar David and Goliath story where, until David flung his well-placed rock, he was being bullied, nattered, and — in this modern iteration anyway — outspent — by his oversized opponent.
Although there were other tools in the legal toolbox — defamation suits, suits for tortious interference and their ilk — like a soda that’s lost its fizz, it left the “Davids” in this story feeling flat. What was needed was a swift SLAPP, they decided, something swift and sharp and affordable and decisive. Thus the Anti-SLAPP statutes were born.
Anti-SLAPP statutes were proposed as a means to provide a quick and inexpensive mechanism to counter retaliatory and vexatious suits. They were teed up as laws that would help the otherwise overmatched “Davids” fell the Philistine giants who deployed their muscle and financial resource to silence critics and, in doing, to chill the exercise of their opponents’ First Amendment rights.
Anti-SLAPP laws enable those who are the subject of a SLAPP suit to seek early dismissal and, oftentimes, to get their legal fees reimbursed. The fact that an anti-SLAPP law is on the books in a particular jurisdiction can also make a potential Goliath think twice before trying to quash his opponent with a mean-spirited and retaliatory suit.
A quick aside here.
Although we are seedings dispersed from the mothership of Jolly Old England and — in the main — our laws derive from that fecund womb across the pond, in the good old U.S. of A., we have not inherited the full genetic compliment of our progenitor. In a word — or perhaps a handful — although our laws derive from English common law — ours is not a system that is completely replicative of that from which it sprung. What I am thinking of is what is referred to among lawyers as the British system and the American system and, in particular, how costs of suit are ordinarily allocated.
In the British system, generally loser pays. If one brings a lawsuit and does not prevail, s/he will bear the other side’s attorney fees and costs. Similarly, if s/he instead wins, his or her costs and fees will be borne by his or her opponent. Just like it’s cricket in England and baseball in these United States, things are different here. As a general precept, under the American system — barring a specific contract term, rule, or statute — each side, win or lose, licks its wounds, and bears its own freight.
Anti-SLAPP is that “rule or statute” that provides otherwise.
As of today, although the particulars vary widely, thirty-one states — the Centennial State among them — have adopted anti-SLAPP legislation. Some state statues are narrowly written, applying only to actions brought against those who have challenged or opposed governmental action. Others stretch out more broadly. Not surprisingly, California’s anti-SLAPP statute affords the most unlimited protection. Colorado hews closer to the California model than some of the more stand-offish statues enacted by other states.
Enacted in 2019, and signed into law with much fanfare by Gov. Jared Polis, like many of its brethren, Colorado’s anti-SLAPP law allows defendants to file a special motion to dismiss a case when they believe the case is a frivolous SLAPP suit. Notably, there is a provision that allows a defendant to have an immediate interlocutory appeal. What this provides is that a defendant to a lawsuit may press “pause” and directly appeal to a higher state court before the lawsuit gathers up a head of steam, which, if successful, spares costs associated the case steamrolling ahead.
The law also creates an expedited timeline to resolve the dispute. Once the special motion to dismiss is filed (which must occur within 63 days of the original complaint), a hearing must take place within 28 days. The purpose of the hearing is for the court to determine whether the plaintiff has a “substantial likelihood” to prevail on the initial claim. If the plaintiff cannot meet this burden, voilà, the motion to dismiss is granted.
But wait, there’s more!
In addition, the law allows defendants who prevail on the motion to dismiss to recover attorney fees and court costs.
Where the intent of the Goliath may have been to chill free speech and to deplete one’s pocketbook, the law allows the David of this story to not only stop Goliath in his tracks but also to get into his pocketbook instead of bleeding his opponents.
In the vernacular of the times, the anti-SLAPP laws attempt to level the legal playing field and to put a little “chill” in those who, until now, might try and strong-arm the system. If the goal of law is justice which is blind, anti-SLAPP laws amble a fair piece down the road towards even-handedness and equity.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.