"Australia needs an anti- SLAPP Statute"

slapp suits 2 5b111SLAPP suits are Strategic Lawsuits Against Public Participation.  It is a run-around of the ICCPR, by abusing the procedures of the court system to silence critics.  By entangling your opponent in expensive litigation you can effectively silence your opponent even if you know you don't have any shot at winning the lawsuit.  The point of a SLAPP suit is not to win, it's to silence and intimidate.* 

The conceptual thread that binds [SLAPPs] is that they are suits without substantial merit that are brought by private interests to "stop citizens from exercising their political rights or to punish them for having done so"...The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.* 

Here are some quick highlights about a federal (and state) Anti-SLAPP statute which could be codified:

  • The statue allows a judge to dismiss frivolous lawsuits filed against one who speaks out about a “matter of public concern” within the first 60 days.  “Matter of public concern” is defined expansively in the statute.
  • The Anti-SLAPP motion is supported by affidavits explaining to the court that the lawsuit is based on, relates to, or is in response to one’s exercise of his right to free speech, right to petition or right of association.
  • The burden of proof is initially on the party who files the Anti-SLAPP motion to establish (by a preponderance of the evidence) that the lawsuit was filed in response to the exercise of his First Amendment rights.  Then the burden shifts to the plaintiff to establish (by clear and specific evidence) a prima facie case for each essential element of the claim.
  • The statute creates a stay of discovery in a lawsuit while an Anti-SLAPP motion is pending and/or appealed.  The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
  • The statute provides for mandatory fee shifting when a party wins an Anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs.  There is a discretionary fee award if the Court finds that the Anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
  • The statute provides an immediate right to an expedited appeal if the Anti-SLAPP motion is denied.
  • The statute applies to lawsuits or “legal actions” (which includes claims and counterclaims that implicate First Amendment rights) filed on or after June 17, 2011.
  • The exemptions contained in the statute are for enforcement actions brought by the State or law enforcement, for commercial speech and for wrongful death and bodily injury lawsuits.

Summary of Proposed Federal Anti-SLAPP Legislation*

The goal of the proposed legislation is to protect the constitutional rights of petition and free speech by creating procedures to dismiss, remedy, and deter Strategic Lawsuits Against Public Participation (SLAPPs). The proposed legislation contains the following provisions:


The proposed federal anti-SLAPP legislation protects petition activity, and speech or conduct, in connection with a matter of public concern, with a set of procedural mechanisms.  A “matter of public concern” includes an issue of health or safety; environmental, economic, or community well-being; the government; a public figure; or a good, product, or service in the marketplace.

The proposed federal legislation allows a defendant to bring a special motion to dismiss the lawsuit at an early stage in the proceedings.  The defendant must show that the lawsuit against him/her arose from his/her protected speech or petitioning activity. The plaintiff must then demonstrate that his/her claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. If the plaintiff fails to meet this burden, the lawsuit is dismissed.  A defendant who loses the motion to dismiss has the right to an immediate appeal, and a claim dismissed on the motion must be dismissed with prejudice.

Discovery proceedings are stayed until the motion is resolved.  However, upon the filing of a motion by the plaintiff where good cause is shown, a court may allow for limited discovery.


Because about half of the states lack anti-SLAPP protections, the bill also provides for federal removal jurisdiction.  A defendant who asserts that the action arises from an act in furtherance of the right of petition or free speech, may remove the claim to federal district court.  This provision does not alter existing state anti-SLAPP laws.


An anonymous speaker whose personally identifying information is sought in a subpoena or discovery order because he/she has petitioned the government or spoken out on a public issue, may make a special motion to quash that discovery order or subpoena. In addition, the individual, or entity, from which such information is sought may also file a motion to quash.  If the plaintiff in the underlying case cannot show that the underlying case has merit, the subpoena must be quashed.


A party who prevails on a special motion to dismiss or quash may recover the costs of litigation, including reasonable attorneys fees.


To ensure that a SLAPP defendant receives the court-ordered relief to which he/she is entitled, this provision makes fees awarded under the statute non-dischargeable in bankruptcy. Some states allow a SLAPP defendant to recover damages incurred in defending against a SLAPP.  This provision also makes these damages non-dischargeable.

To protect against abuse of the statute, the bill may not be used to dismiss any claim brought by the Federal Government.  In addition, any government entity may not recover costs and fees under the proposed law.

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