Can Governmental Defendants Use Anti-SLAPP Statutes When They're Sued Based on Their Speech?

No, said the Florida Court of Appeal, interpreting the Florida statute; the California Supreme Court, interpreting the California statute, had held otherwise.

Say Paul sues Don, claiming that Don libeled Paul. Don might be in the right, and he might eventually win—but it may take a lot of time and a lot of money. As a result, the Dons of the world will often settle, and agree to take down or retract their statements; the threat even of legally unfounded litigation might silence them.

Because of that, many states have enacted anti-SLAPP statutes, which (generally speaking) make it easier for defendants to quickly dispose of cases brought based on speech on matter of public concern. (The statutes are often raised in response to libel claims, but they also apply to other speech-based claims.) The statutes often have some mix of the following features:

1. A right to move to get the case promptly dismissed.
2. A stay of factual discovery while the motion is being considered.
3. Immediate appeal if the court denies the motion to dismiss.
4. Payment by plaintiff of the defendant's legal fees if the defendant wins the motion.

The plaintiff can respond to the motion by arguing that he has a legally viable claim. (Generally speaking, at this point, before discovery, the court doesn't consider any factual disputes, but focuses on the legal issue.) But if plaintiff's claim proves not to be legally viable, defendant wins quickly.

These statutes have often raised lots of interesting legal questions of their own, including whether governmental defendants can bring the same anti-SLAPP claims, if they are sued based on their speech. The California Supreme Court, for instance, held that governmental defendants are indeed entitled to bring anti-SLAPP motions (Vargas v. City of Salinas (Cal. 2009)), but today the Florida Court of Appeal interpreted the Florida statute differently (in Crosby v. Town of Indian River Shores, written by Jeffrey Kuntz and joined by Judge Dorian Damoorgian):

We answer a novel question in Florida: can governmental entities rely on Florida's Anti-SLAPP statute as a defense to lawsuits filed by citizens against the governmental entity? As all statutory questions do, the answer depends on the specific text of the Florida statute.

SLAPP lawsuits, or Strategic Lawsuit Against Public Participation lawsuits, are "civil lawsuits and counterclaims … filed against countless citizens, businesses, and organizations because of their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate." See Ch. 00-174, Laws of Florida.

To stop SLAPP lawsuits, the Florida Legislature enacted the Citizens Participation in Government Act, Chapter 00-174, Laws of Florida. The legislation—codified at section 768.295, Florida Statutes (2021)—is Florida's Anti-SLAPP statute. The Anti-SLAPP statute "protect[s] the right in Florida to exercise the rights of free speech in connection with public issues." Section 768.295(3) specifically provides:

[a] person or governmental entity in this state may not file … any lawsuit … against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state ….

In our view, the legislature was clear. The Anti-SLAPP statute protects citizens from lawsuits filed because of their participation in public issues. It is just as clear that the Anti-SLAPP statute does not protect a governmental entity from lawsuits filed by its citizens.

The Anti-SLAPP statute applies when a "person or entity [is] sued by a governmental entity or another person." When the "person or entity" claims the suit violates the Anti-SLAPP statute, the "person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity." If that fails, "[t]he person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant's or governmental entity's lawsuit has been brought in violation of this section." And, the court "may award … the party sued by a governmental entity actual damages arising from a governmental entity's violation of this section."

If the Legislature intended for "governmental" entities to be protected by the statute, then the Legislature would have written "against another person or entity" as "against another person or government entity." Instead, it wrote the opposite. In each instance where it referenced the party entitled to the protection of the Anti-SLAPP statute, the statute references person or entity. And in each instance where it referenced the party violating the Anti-SLAPP statute, the statute references the governmental entity or other person.

Additionally, the Anti-SLAPP statute specifically protects:

the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

It protects the right guaranteed to each of us by the First Amendment. But "the First Amendment protects citizens' speech only from government regulation; government speech itself is not protected by the First Amendment." N.A.A.C.P. v. Hunt (11th Cir. 1990) (citing Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm. (1973) (Stewart, J., concurring)). That "[g]overnment speech is regulated primarily by 'the political process,' not the Constitution," is another basis to conclude the statute does not protect the Town….

Here, Crosby brought the claim against a governmental entity, the Town. The circuit court therefore erred when it allowed a governmental entity to rely on Florida's Anti-SLAPP statute as the ground for granting its motion to dismiss….

Judge Melanie May dissented in relevant part:

As the majority correctly points out, the statute does not use the term "governmental entity" to indicate who the lawsuit is against. Instead, the legislature chose the term "entity," a term broader than "governmental entity." Rather than resort to legislative intent or statutory construction, my plain reading of the statute indicates the lawsuit's object can either be a person or an entity regardless of whether the entity is governmental. Just because the Town of Indian Shores fits within both the definition of "governmental entity" and "entity" does not somehow mean it is not an entity in the broader sense of the term. It does not eliminate its protection under the statute….

While I find traditional canons of statutory interpretation unnecessary considering the text's plain meaning, I believe they lend further support to my position and prevent us from limiting the statutory provision at issue. "Without some indication to the contrary, general words are to be accorded their full and fair scope" and "are not to be arbitrarily limited."

Courts have been expressly cautioned not to "infer exceptions for situations that the drafters never contemplated and did not intend their general language to resolve" when confronted with generally worded provisions. Instead, "[t]he presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions." "[I]n the end, general words are general words, and they must be given general effect."

Here, a person filed a lawsuit against an entity, the Town of Indian Shores, whose council members exercised their constitutional free speech rights in connection with a public issue. Section 768.295(3), Florida Statute (2021) protects the entity, albeit governmental, from such a suit….

Congratulations to Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., who represented Crosby.

Comments

[Gandydancer]

The dissent quotes sec.2021 as follows:

[a] person or governmental entity 2 in this state may not file . . . any lawsuit . . . against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state . . . .

…but doesn’t seem to take in the words it quotes. The majority observes that government entity has none of the rights listed and therefor no suit against it can possibly be because the government entity has exercised those rights. The dissent argues that government entities are entities, but that is beside the point.

[David Nieporent]

Agreed.

[Roger S]

Okay, a govt entity is an entity. The statute could have said "against another person or non-governmental entity".

[Gandydancer]

Um… I guess a government entity has a “right” to “instruct representatives of government”, but if THAT is the basis of applying the SLAPP law the dissent needed to make it clear that it ONLY applies THEN, and how THAT applies HERE, rather than droning on distractingly about what “entity” means.

[Magister]

"person or governmental entity" - does this mean that a non-governmental entity can sue anyone without fear of the anti-SLAPP law?

[Gandydancer]

"Persons" are of course also "entities", so the law isn't using the minimum number of words. Your question is a good one but perhaps the NAACP, e.g., is legally a "person"?

[ReaderY]

I don’t see an “of course” here at all. Quite the opposite. Why would the statute bother to use different words if a “person” is always a kind of “entity”? That would violate basic canons of statutory construction. It also violates the ordinary meaning of the term. An entity is a kind of object, legal fiction, or similar. It’s a kind of thing in the taxonomy of nouns, not a kind of person (or place).

[Gandydancer]

You are wrong. Ordinary true fact: Persons are sentient entities.

[ReaderY]

A corporation is often considered to be legally a sort of person. But there are many kinds of entities, like partnerships and LLCs, that aren’t so regarded.

[Gandydancer]

My observation was not, of course, that all entities are persons.

[ReaderY]

Under the statute as interpreted, persons, governmental entities, and entities are all distinct things. Only persons and entities can use the SLAPP protections, and they can only use them against persons and governmental entities.

That suggests an obvious strategem. If people want to sue in a way that avoids Florida’s anti-SLAPP statute, they might want to form a partnership or LLC, some non-governmental entity that isn’t considered legally a person (as a corporation might be), and find a way to have that entity be the plaintiff in their suit. A small corporate business might for example want to reorganize and transfer its assets to an LLC before suing.

[Joe_dallas]

The new entity would not be the entity that was injured, thus no claim.

[ReaderY]

That wouldn’t prevent all uses for the strategem, although it wouldn’t work in every case and perhaps even not most cases. Suppose you are a a small business that gets very annoying and (you think) defamatory reviews and the person won’t stop, and you’re e.g. a sole proprietorship. If there’s an ongoing or repeated violation, there might be time to reorganize and then wait for the person to repeat when the business is now organized as the new, non-person entity (say an LLC). And then sue.

[Tom Tildrum]

I have trouble understanding the basic purpose of the anti-SLAPP statute. It says that if someone files a suit “without merit” (involving certain subject matter), the defendant may move to dismiss. How is that different from any lawsuit? In federal practice, that’s an ordinary Rule 12(b)(6) motion. To use Eugene’s hypothetical, how does Don’s motion to dismiss Paul’s lawsuit look different under an anti-SLAPP statute from any other motion to dismiss? Or does Florida practice otherwise not have a vehicle for a defendant to seek dismissal for lack of legal merit before discovery?

Is the only difference that the relief sought would include attorney's fees?

[Bored Lawyer]

IIRC, the plaintiff has to come forward with some evidence to show a prima facie case. So it goes beyond the pleadings.

The real problem is that litigation (read, discovery) has become so burdensome and expensive that the process itself can be crushing for many litigants.

[Tom Tildrum]

Thanks.

[Joe_dallas]

If I understand correctly, a normal motion to dismiss , the fact in pleading are assumed (deemed?) to be true, whereas , in a SLAPP motion to dismiss, the plaintiff has the burden of demonstrating that the allegations are true.

As a side note, the motion to dismiss the Mann v Steyn, et al slapp suit, the initial judge[s] (greene ) assumed the facts stated in Mann's pleadings were true. Just pointing out that the Mann case is a bad example of the required standards/ procedures required in a SLAPP motion.

[David Nieporent]

Different states craft their anti-SLAPP laws differently, so we can't generalize. But the key difference is attorneys' fees, yes.

[Ed Grinberg]

from Wikipedia:

Strategic lawsuits against public participation (also known as SLAPP suits or intimidation lawsuits), or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Now, how likely are governmental defendants to be "censor[ed], intimidate[d], and silence[d]"? For one thing, they don't bear the "burden[]...[of] the cost of a legal defense" -- taxpayers do!