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- Title
THE ANTI-SLAPP KNOCKOUT: LITIGATION INCENTIVES, THE SEVENTH AMENDMENT, AND THE LOST TORT OF DEFAMATION.
- Authors
Standen, Jeffrey
- Abstract
"SLAPP" suits are tort actions motivated by a desire to impose litigation costs on defendants who have made public criticisms of plaintiffs in exercise of their constitutional right to expression. Many states have passed "Anti-SLAPP" statutes that allow defendants to file early, dispositive motions to dismiss meritless suits. These statutes typically require tort plaintiffs to provide "clear and specific evidence" establishing a prima facie case as to each element of their claim, and to overcome any defenses or privileges raised by the defendant. Filing an anti-SLAPP motion stays or limits discovery; the plaintiff must survive the anti-SLAPP procedure with the evidence gathered pre-filing. Should the defendant's motion prevail, the plaintiff will be assessed defendant's costs and attorney's fees and could face sanctions for filing a non-meritorious claim. This Article contests the common anti-SLAPP narrative. It argues that the anti-SLAPP statutes have done more to vanquish defamation actions than even the "actual malice" requirement of New York Times v. Sullivan. Because the defendant is typically in exclusive possession of much of the key evidence necessary to establish a defamation claim, particularly as to fault, requiring the plaintiff to provide immediate proof of each element in effect renders most plaintiffs with an impossible task. In addition, requiring the plaintiff to defeat all of the claimed defenses and privileges, most of which involve highly subjective standards of "good faith" and "substantial truth," or which involve opaque legal distinctions, such as "fact vs. opinion," imposes an even heavier burden. Should the plaintiff guess wrong, and not be able to prevail on every legal and factual issue a complex defamation case presents, then the plaintiff will be left to pay for defendant's expensive legal fees. If they are subject to anti-SLAPP liability, defamation claims are today advisable only for the wealthiest or the most reckless. The anti-SLAPP statutes also generate a problem of constitutional dimension. Because of their facial similarity to summary judgment motions, anti-SLAPP statutes have been thought to not impinge on the Seventh Amendment's right to trial by jury. In fact, despite superficial appearances, along several key dimensions the new state anti-SLAPP statutes impinge on the plaintiff's jury trial rights to render them constitutionally problematic.
- Subjects
ANTI-SLAPP laws; CIVIL rights; LIBEL &; slander; RIGHT to trial by jury; RESEARCH methodology; PLAINTIFFS
- Publication
University of Louisville Law Review, 2024, Vol 62, Issue 2, p293
- ISSN
1942-9274
- Publication type
Article