Washington State Says Its Anti-SLAPP Law Is Unconstitutional

from the don't-panic dept

For years, we've talked about the importance of anti-SLAPP laws that help quickly toss out lawsuits whose sole purpose are to silence critics. A key point that we've made is the need for a federal anti-SLAPP law, because until then, we're at the mercy of a patchwork of state laws. Some states have no anti-SLAPP law. Some have weak ones. A few have strong ones. In just the past month alone we've discussed Florida strengthening its anti-SLAPP law, and Nevada's attempt to weaken its anti-SLAPP law. Meanwhile, a court in DC issued a ruling that greatly limited the effectiveness of DC's anti-SLAPP law.

And now... Washington State has just ruled its anti-SLAPP law unconstitutional. The full ruling is worth reading, but if you want to dive deep, Ken "Popehat" White has excellent "lawsplainer" as well. In short, this particular anti-SLAPP had a feature unlike most others -- and that was the problem. Basically, it requires the plaintiff "to establish by clear and convincing evidence a probability of prevailing on the claim." Most states, on the other hand, use lesser standards, involving "sufficient" evidence or something similar. The problem, as the Washington court ruling notes, is that by making the standard "clear and convincing" it requires the judge to weigh the evidence. And that's a problem, the court decided, because then the judge is effectively acting as a jury -- thus depriving the plaintiff of a constitutionally guaranteed jury trial:
Thus, [the Washington anti-SLAPP law] creates a truncated adjudication of the merits of a plaintiffs claim, including nonfrivolous factual issues, without a trial. Such a procedure invades the jury's essential role of deciding debatable questions of fact. In this way, [the anti-SLAPP law] violates the right of trial by jury under article I, section 21 of the Washington Constitution.
In short: the court is saying that the anti-SLAPP would be okay if it were more like a summary judgment situation, wherein the judge didn't have to weigh any of the evidence on the merits. Once it gets to that stage, however, it's taking on the role of a jury. As Popehat notes, this might impact some of the stronger anti-SLAPP laws out there, but it's fixable, just by changing the standard. Unfortunately, though, that does lower the power of some anti-SLAPP laws:
Fortunately, the fix is relatively simple — all state legislatures have to do is define the plaintiff's burden carefully so that it resembles the summary judgment burden — the burden to produce admissible evidence which, if believed, is enough to win. Practically speaking, that will continue to weed truly frivolous cases out.

Speaking as someone who hates censorious and vexatious lawsuits, it would be nice, on some level, if plaintiffs suing over speech had to prove that their evidence was not just sufficient but strong. But that requirement has always been vulnerable to attack.

This ruling will only impact the more aggressive anti-SLAPP statutes, not the most common ones.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: anti-slapp, free expression, free speech, jury, washington, weigh evidence


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 29 May 2015 @ 3:16pm

    I have to agree with this. The Constitution gives the right to trial by jury in civil cases. A judge can only throw out a case if there are no disputed facts or the disputed facts don't matter (like if I try to sue someone for slander but admit that what they said is true.) The judge cannot weigh facts; that's what the jury is for. (Except in matters like preliminary injunctions where something needs to be decided before a trial can be held - and those aren't final judgements.)

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 May 2015 @ 5:10am

    What does Washington State have to do with Washington DC?

    link to this | view in chronology ]

  • icon
    SLAPP Victim (profile), 30 May 2015 @ 6:28pm

    FL SLAPP Victim

    If the Federal Government needs a SLAPP case to justify a Federal SLAPP protection law, mine should be at the forefront. My FL SLAPP was filed in violation of state law, 100% fraudulent and specifically states "it is to silence me." It took four attorneys to be fully dismissed.

    link to this | view in chronology ]


Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.