Strategic lawsuit threats against public participation

A strategic lawsuit against public participation (SLAPP), SLAPP suit, or intimidation lawsuit[1] is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.[2]

In the typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate.[3] A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. SLAPPs bring about freedom of speech concerns due to their chilling effect and are often difficult to filter out and penalize because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.

To protect freedom of speech some jurisdictions have passed anti-SLAPP laws (often called SLAPP-back laws). These laws often function by allowing a defendant to file a motion to strike and/or dismiss on the grounds that the case involves protected speech on a matter of public concern. The plaintiff then bears the burden of showing a probability that they will prevail. If the plaintiffs fail to meet their burden their claim is dismissed and the plaintiffs may be required to pay a penalty for bringing the case.

Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid, abusive suits, without denying a legitimate day in court to valid good faith claims. Anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.[4]

Florida has two anti-SLAPP laws, one narrow in scope and the other much broader. The narrower provision specifically protects homeowners from lawsuits by individuals, businesses, and government entities based on homeowners’ “appearance and presentation before a governmental entity on matters related to the homeowners’ association.” § 720.304(4). Florida’s legislature intended such SLAPP suits to be “expeditiously disposed of by the courts.” § 720.304(4).

Florida’s general anti-SLAPP provision, which was adopted in 2000 and expanded in 2015, prohibits lawsuits brought against individuals for exercising their right of free speech in connection with a public issue or their rights to peacefully assemble, to instruct representatives of government, or to petition the government for a redress of grievances. Fla. Stat. Ann. § 768.295(3) (2019).

The law defines “free speech in connection with public issues” as statements “made before a governmental entity in connection with an issue under consideration or review by a governmental entity” or “made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.” § 768.295(2)(a).

Under Florida’s general anti-SLAPP law, a defendant can file a motion to dismiss or for summary judgment, which the court will hear “at the earliest possible time.” § 768.295(4).

Florida’s anti-SLAPP laws are two of only a handful that do not address whether a SLAPP defendant’s motion will halt discovery proceedings. Besides stating that a defendant must show that the lawsuit was brought in violation of the relevant anti-SLAPP law, neither provision specifies what standard a court uses to decide whether a claim was wrongly brought. §§ 768.295(4), 720.304(4)(c).

Significantly, under either anti-SLAPP provision, whichever party prevails on the special motion is entitled to recover attorney’s fees and costs. §§ 768.295(4); 720.304(c). Thus, a SLAPP defendant who does not prevail on an anti-SLAPP motion must pay the plaintiff’s attorney’s fees and costs, presenting a significant deterrent from filing even legitimate anti-SLAPP motions.

Under the general anti-SLAPP provision, if a government entity is found to be in violation of this statute, the court may award actual damages. § 768.295(4). In addition, a defendant who prevails under Florida’s homeowner anti-SLAPP law may be awarded treble damages. § 720.304(4)(c).