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IP and Tech Law Alert: Florida's Broader Anti-SLAPP Law Effective July 1, 2015

June 26, 2015

Effective July 1, 2015, Florida will have broader prohibitions against SLAPP suits, or “strategic lawsuits against public participation.” Many states have enacted anti-SLAPP laws to prevent companies and government entities from filing frivolous lawsuits against their critics. For example, when a citizen or consumer posts a negative comment about a governmental program or a company’s services, the entity subject to the criticism may choose to file a defamation or infringement lawsuit against the individual who posted the comment. Such lawsuits have become more prevalent due to the popularity of websites geared towards consumer reviews, such as yelp.com.

Under most anti-SLAPP laws, the individual against whom a lawsuit was filed may move to strike or dismiss any claims that arise from a range of protected First Amendment-related activities (e.g., by asserting that the critical review involved speech on a matter of public concern). The entity that filed the lawsuit then has the burden of establishing with evidence a probability that it will prevail on the claims. If the court finds in favor of the individual, then the claims will be dismissed and the entity that filed the SLAPP suit will be required to pay the individual’s reasonable attorney’s fees (and, in some states, a monetary penalty).

Florida’s anti-SLAPP law, Section 768.295 of the Florida Statutes, has historically applied to only those SLAPP suits filed by governmental entities; however, effective July 1, 2015, the law will apply to SLAPP suits filed by anyone. The amended law will protect free speech in connection with public issues in two categories: (1) speech made before a governmental entity in connection with an issue that the governmental entity is considering or has under review; and (2) speech in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report or similar works. The law provides for expeditious resolution of a SLAPP suit and an award of attorney’s fees to the prevailing party.

While Florida has opted to broaden its anti-SLAPP law, some courts have recently begun to reign in the applicability of anti-SLAPP laws.

On May 28, 2014, the Washington Supreme Court held that the state’s anti-SLAPP law, RCW 4.24.525, is unconstitutional. Davis v. Cox, No. 90233–0 (Wash. May 28, 2015) (en banc). Specifically, the court found that the law’s procedure for early summary dismissal of SLAPP lawsuits violated the right to a jury trial guaranteed by the Washington Constitution, because the law required the trial judge to weigh the evidence and make a factual determination of whether the plaintiff established by clear and convincing evidence a probability of prevailing at trial. The court concluded that the state’s anti-SLAPP law created a “constitutional conundrum” because it sought to “protect one group of citizen’s constitutional rights of expression and petition—by cutting off another group’s constitutional rights of petition and jury trial.” Because the state’s anti-SLAPP law has been invalidated, defendants previously protected by the law can no longer move to have the claims against them stricken as SLAPPs and cannot recover related attorneys’ fees, costs, and penalties.

Federal courts have also limited the applicability of anti-SLAPP laws. On April 24, 2015, the U.S. Court of Appeals for the District of Columbia Circuit held that a state anti-SLAPP law does not apply in federal court exercising diversity jurisdiction. Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015). The court ruled that Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court, and a federal court must apply those Federal Rules instead of the D.C. Anti–SLAPP Act’s special motion to dismiss provision.

The U.S. Court of Appeals for the District of Columbia Circuit is the first federal appellate court to rule against the applicability of state anti-SLAPP laws in federal court, although some federal district courts have reached similar conclusions. The U.S. Court of Appeals for the Ninth Circuit ruled in 1999 that California’s anti-SLAPP law could be invoked in federal court; however, two Ninth Circuit judges recently expressed disagreement with that ruling. As such, the Abbas decision sets up a circuit split on the issue, which may ultimately require resolution by the U.S. Supreme Court.

Such a ruling may be unnecessary, though, if the U.S. Congress enacts a federal anti-SLAPP law. On May 13, 2015, a bi-partisan group of Representatives introduced the “‘Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015” or the “SPEAK FREE Act of 2015” (H.R. 2304). This proposed law, which would operate similar to state anti-SLAPP laws, would broadly apply to any claim against a person who makes a statement about a matter of public concern. Additionally, under the proposed legislation, a state court action that involves a claim arising under the law could be removed to federal court, which would benefit defendants sued in states that either do not have anti-SLAPP laws or that have narrower anti-SLAPP laws.

Anti-SLAPP laws are currently under scrutiny by the courts and the legislature. In the meantime, an entity that is deciding whether to file a lawsuit in response to a critical review must be mindful of any governing anti-SLAPP laws and consider the possibility of defending against an anti-SLAPP motion and potentially paying the critic’s attorney’s fees and a monetary penalty.