alec presentation (final)
DESCRIPTION
Last week, I attended ALEC in Chicago and co-presented the following PowerPoint for the purpose of raising awareness about anti-SLAPP laws. According to Wikipedia, SLAPPs are defined as, "strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition." The goal of the presentation is to encourage policy makers to follow the lead of states like California and Texas to ensure consumers' free speech is protected online. This is an issue Yelp has presented in a variety of forums to both sides of the aisle. For more information on anti-SLAPP, see: http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation http://slappedintexas.com/about/ http://www.anti-slapp.org/TRANSCRIPT
Texas: A Model for An0-‐SLAPP
What is An0-‐SLAPP?
An0-‐SLAPP in the States: Inconsistent
Texas: A Model for An0-‐SLAPP
An An0-‐SLAPP law is a weapon against SLAPP suits
Enacted unanimously during the 2011 Texas Legislature
28 jurisdic0ons that have some form of the statute (many are limited to speech in governmental seJngs).
Designed to prevent “bullying” with lawsuits. Texas Statute Effec0ve June 17, 2011. (Amended June 14, 2013) There is no federal An0-‐SLAPP statute.
Components of Texas An0-‐SLAPP
Basics:
Provides a mo0on to dismiss a lawsuit aYer as liZle as 60 days when the lawsuit is based on the exercise of First Amendment rights
Texas: A Model for An0-‐SLAPP
Who does it apply to:
EVERYONE: if they are speaking out about a “ma$er of public concern”
Journalists, Bloggers, Ci0zens who speak out, Comments on websites, Reviews of business, Protesters, Web comments, etc.
Texas: A Model for An0-‐SLAPP
“MaZer of public concern” includes an issue related to:
Health or safety; Environmental, economic, or community well-‐being; The government; A public official or public figure; or A good, product, or service in the marketplace.
An0-‐SLAPP
When you might use it:
Defama0on, business disparagement or other lawsuit arising from or connected to an Ar0cle, either in print or online Broadcast Comments on a website Comments at any public mee0ng, such as a city council mee0ng Protests
Applies to counterclaims and third-‐party claims.
Texas: A Model for An0-‐SLAPP
Who it doesn’t apply:
Gossip about a private individual Enforcement ac0ons by the state Commercial speech (i.e., marke0ng materials) Wrongful death/bodily injury lawsuits Insurance cases
Texas: A Model for An0-‐SLAPP
Test Applied
Original Burden on Party Filing the Mo0on to Dismiss: They must establish:
that the claim arises out of the exercise of the right of free speech, the right to pe00on or the right of assembly
Burden shiYs to person who brought the claim. They must establish:
By heightened standard of “clear and specific evidence” A prima facie case of each essen0al element of their claim In order to meet this burden, the Claimant must provide clear and specific evidence that would
be sufficient to preclude the gran0ng of summary judgment.
Texas: A Model for An0-‐SLAPP
How it works:
Procedures Under The
An0-‐SLAPP Statute
Texas: A Model for An0-‐SLAPP
File Mo0on to Dismiss Must be filed within 60 days from service of process
Note: if Secretary of State is served, the date Secretary of State was served is the date of service. Discovery is stayed un0l the mo0on is ruled on unless good cause is shown for
limited discovery. Mo0on must show by a preponderance of the evidence that the lawsuit was filed
in response to the exercise of First Amendment rights. An affidavit should be included with the mo0on to provide this evidence.
Burden then shiYs to the Claimant to establish a prima facie case for each element of the claim by “clear and specific” evidence. Clear and specific =
• More than a preponderance of the evidence. • Less than clear and convincing evidence
Court can dismiss the case if the moving party establishes a valid defense to the claim.
Texas: A Model for An0-‐SLAPP
Hearing on Mo0on to Dismiss
Must be held within 60-‐90 days of the serving of the mo0on
Court must rule within 30 days of the §27 hearing
The Mo0on is denied by opera0on of law if the court fails to rule within 30 days of the hearing
AYer a ruling, a party may request findings of fact (and the court is required to issue findings within 30 days of a request to do so) regarding whether the legal ac0on was brought to prevent the exercise of cons0tu0onal rights, and was brought for an improper purpose
Texas: A Model for An0-‐SLAPP
Right to an Immediate Appeal
The An0-‐SLAPP law provides for an immediate interlocutory appeal of a judge’s ruling on the law or denial by opera0on of law
Appeal must be filed within 20 days of either a ruling or the expira0on of 0me to rule (which is a denial by opera0on of law).
Discovery and trial are stayed while the appeal is pending.
Texas: A Model for An0-‐SLAPP
Recoup AZorneys’ Fees
If the court dismisses the case under the An0-‐SLAPP law, the court MUST order the party who brought the claim to pay the An0-‐SLAPP movant’s reasonable aZorneys’ fees and sanc0ons.
If the court finds that the An0-‐SLAPP mo0on was frivolous, the court MAY order the An0-‐SLAPP movant to pay the aZorneys’ fees of the party who brought the claim, related to the mo0on.
Deterrent to future lawsuits.