How do anti-SLAPP laws work? My limited understanding is that’s just a judge throwing out frivolous cases like this one meant to stifle speech or injure an opponent and making the litigant pay for the defendant’s costs which given the speed of decision are hopefully minimal.
Is there more to it than that? Anything I missed/got wrong? Is it just up to a judge’s discretion what is frivolous? Is there recourse for a litigant if they feel their case has merit? Like I strongly agree that such laws are necessary especially given the current state of things, I’m just worried what the potential problems or unintended consequences might be if there are any.
Typically these statutes provide that you use a “motion to dismiss” process to address these situations, with fee-shifting if you succeed. A motion to dismiss is a process that all courts have in one form or another, and is a method of trying to get rid of a lawsuit very early in the litigation. Typically, the procedure is that after the plaintiff files the Complaint that starts the lawsuit, instead of Answering the lawsuit the defendant files a motion to dismiss (the name of the motion may vary depending on jurisdiction). Typically these motions would be based on arguments like “failure to state a claim” or lack of subject-matter or personal jurisdiction. For example, I was sued one time for allegedly violating someone’s civil rights. A motion to dismiss was filed, saying “even if every single thing that was alleged by the plaintiff in the Complaint is assumed to be true, as a matter of law I could not have violated anyone’s civil rights because I am not a government actor.” The judge has to assume that every fact alleged in the complaint is true (with some exceptions), and if even with all that being true the plaintiff can’t win (because there would be no legal basis for finding liability, or the court can’t hear that kind of case, or the defendant is not subject to the jurisdiction of that court), then the case is dismissed. (Sometimes without prejudice, meaning the plaintiff can try again with a new complaint).
Anti-SLAPP laws generally add a new basis for a motion to dismiss, along the lines of “this is case is merely designed to try and stifle speech about matters of public concern.” For example, the Texas law provides:
| 7) "Matter of public concern" includes an issue | |
| | related to: |
| | (A) health or safety; |
| | (B) environmental, economic, or community |
| | well-being; |
| | (C) the government; |
| | (D) a public official or public figure; or |
| | (E) a good, product, or service in the |
| | marketplace. |
So, in the case of X/Twitter, 7(E) seems relevant. Maybe 7(B) too.
If the party being sued can show the court that the lawsuit is intended to prevent or retaliate against free speech about such matters, then the court can dismiss the case.
Typically a motion to dismiss happens very early in the case (3 or 4 months), as you can waive some of these arguments if you answer the complaint instead of filing the motion.
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