Anti-SLAPP Statutes: Background
I blogged some time ago about anti-SLAPP statutes and section 1983 both in state courts and federal courts. Readers will want to consult both my post of July 23, 2010, and my post of April 27, 2011, for those discussions and relevant background.
A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances or for otherwise engaging in speech.
In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition or free speech.
Consider the following Washington Supreme Court decision holding that a city was not protected by an anti-SLAPP statute in connection with state-law claims (not section 1983 claims).
Henne v. City of Yakima, No. 89674-7 (Wash. Jan. 22, 2015).
In Henne, a former police officer sued the City of Yakima under state law, alleging that it had created a hostile work environment because of the way it handled an investigation into complaints against the officer. The city moved to dismiss on the ground that it was protected by Washington State’s anti-SLAPP statue, Revised Code of Washington §4.24.525.
Ultimately, the Washington Supreme Court, in opinion by Justice Sheryl Gordon McCloud, ruled against the city on the ground that the plaintiff’s state-law lawsuit was based on communications made by other officers to the city and not communications made by the city itself It declared:
“We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government’s own communicative activity.”
The Washington Supreme Court expressly did not decide whether a city could ever be protected by the anti-SLAPP statute. However, it observed that the statute “protects the ‘right of free speech’ and ‘the constitutional right of petition,’ (RCW 4.24.525(2)), rights that the constitution grants to individuals against the government not to the government against individuals.” (emphasis added).
Justice Mary E. Fairhurst, joined by Justices Charles W. Johnson and Mary I. Yu. Fairhurst, wrote a separate opinion arguing that cities should be able to use the anti-SLAPP statute, but concurred with the majority because she said the underlying suit wasn’t a SLAPP suit.
1. The unresolved issue in Henne is one of statutory interpretation: does the Washington State anti-SLAPP statute, which refers to “persons,” cover cities?
2. The deeper conceptual issue is whether cities have any petition or free speech rights under the United States Constitution. See my post on government speech of March 28, 2011, and the immediately preceding posts on Justice Souter’s views of government speech.
3. Whatever the answer to the conceptual question, a state can protect cities in an anti-SLAPP statute even if they do not have such petition or free speech rights.
2. If a particular anti-SLAPP statute is interpreted to protect cities, then that, of course, has practical implications for its application to section 1983 claims as well, and not just state-law claims.
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