The Latest in the SLAPP Wars

Recent decisions have created a wrinkle in the procedural issues related to anti-SLAPP laws. As we discussed in April, the DC Circuit created a split in the circuits when it departed from the general holding that anti-SLAPP statutes could be used in diversity cases applying state law. In Abbas v. Foreign Policy Group, LLC, the DC Circuit Court of Appeals held “a federal court exercising diversity jurisdiction may not apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision” and that federal courts must follow the Federal Rules.

Conversely, the plaintiff in Diamond Ranch Academy, Inc. v. Filer made the same procedural argument to no avail to a federal court in Utah which held the California Anti-SLAPP Statute was applicable to a diversity defamation action. Diamond Ranch Academy, Inc. (“DRA”), a youth rehab center in Utah, brought suit against Chelsea Filer, a California resident and outspoken critic of such treatment centers — having attend one as a minor. Filer started a website called www.drasurvivors.com and, according to the plaintiff’s complaint, “made defamatory statements about DRA on Facebook pages, blogs, and other media, both in writing and orally.” This ongoing discord in the Federal Judiciary evidences the need for Federal Anti-SLAPP law, such as the SPEAK FREE Act currently proposed in Congress. Since its introduction, the SPEAK FREE Act has garnered widespread support.

This push-and-pull is also happening in various state legislatures. The debate-taking place in Nevada exemplifies the different perspectives. In 2013, the Nevada legislature expanded its anti-SLAPP statute to protect any communications “made in direct connection with an issue of public interest in a place open to the public of in a public forum” creating a special motion to dismiss meritless claims against free speech awarding court costs, attorney’s fees, and a possible penalty if the motion is granted. While the new law attracted media and technology firms, it drew criticism from certain business owners who complained that the bar for bringing a well-founded defamation case was too high. In March of this year, a group led by Wynn Resorts introduced Bill 444 to roll back the measures in Nevada’s Anti-SLAPP statute. Bill 444 swiftly passed in the State Senate 21-0.

After significant pushback from supporters of the Anti-SLAPP law, including a vigorous debate before the Assembly Judiciary Committee, the bill was significantly amended. Most of the language gutting the anti-SLAPP law was removed in the amended version, leaving the bill with only two minor procedural changes. For now, the Nevada anti-SLAPP statute is safe and other legislatures in Colorado and Washington are preparing for a similar process.

If you or your organization have been threatened with a defamation lawsuit, or if you would like to learn how to create safeguards to minimize the risks of such a lawsuit, please contact Ward & Ward PLLC for a consultation with one of our attorneys. From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, nonprofit, and commercial clients with various First Amendment issues.