Anti-SLAPP Laws Of The U.S. Ranked By Quality

Anti-SLAPP laws are statutes that provide a substantive right of a person to an early dismissal of causes of action brought against them with the effect of silencing or punishing their First Amendment (and corresponding state constitutional) rights to freedom of speech and to petition. The idea ― which has been proven to be very successful ― is to prevent a plaintiff from using the heavy monetary and emotional expense of litigation to grind down a defendant, even if the plaintiff’s lawsuit is ultimately shown to be meritless. Anti-SLAPP laws accomplish this by, basically, moving the summary judgment motion from the end of a case to the start of the case and imposing a stay of the litigation until the Anti-SLAPP motion is resolved by the court.

Which U.S. jurisdiction has the best Anti-SLAPP laws? This article rates the Anti-SLAPP laws of the U.S. states and territories. There were many factors considered, but the primary considerations went to scope (breadth of protection), the availability of an automatic stay of the litigation or at least of discovery, the availability of a mandatory appeal of right to an unsuccessful movant, the awarding of attorneys fees and costs, and whether the statute contains a uniformity of interpretation provision to deter forum shopping. An ancillary purpose of this article is to let state legislatures know where their Anti-SLAPP statutes are deficient (or that they do not have one at all) so that these problems may be remedied.

Because the Uniform Public Expression Protection Act (“UPEPA”) uniquely satisfies all of the requirements, the states that have adopted the UPEPA are automatically granted an “A” rating. The states that have very good organic Anti-SLAPP laws, but do not have the benefit of the UPEPA’s uniformity provision fall into the “B” category. States with workable but flawed Anti-SLAPP statutes get a “C” while the states with mostly useless statutes get a “D”. The states with no Anti-SLAPP law at all of course merit an “F”.

So here we go:

Tier “A” States

Quality Anti-SLAPP statute, including provision for uniformity of interpretation to prevent forum-shopping and enhance quality of court opinions.

1. Hawaii … Adopted UPEPA.
2. Idaho … Adopted UPEPA.
3. Kentucky … Adopted UPEPA.
4. Maine … Adopted UPEPA.
5. Minnesota … Adopted UPEPA.
6. New Jersey … Adopted UPEPA.
7. Ohio … Adopted UPEPA.
8. Pennsylvania … Adopted UPEPA.
9. Utah … Adopted UPEPA.
10. Washington … Adopted UPEPA.

Tier “B” States

Quality Anti-SLAPP statute, but without provision for uniformity of interpretation.

1. California … Long the flagship leader of Anti-SLAPP laws, has been supplanted by the UPEPA and is now showing its age, with some court opinions conflicting with the clear text of the statute.
2. Colorado … Covers the most important parts but no uniformity.
3. Georgia … Generally good statute but requirement that responding party establish a “probability” of success at trial may create a constitutional infirmity, and no uniformity.
4. Kansas … Good statute but lacking in a uniformity provision.
5. Nevada … Arguably the best of the non-UPEPA statutes, but the lack of uniformity has arguably resulted in some quirky court opinions.
6. New York … Newer Anti-SLAPP law adopted shortly before the UPEPA was completed and modeled on the California statute.
7. Oklahoma … Good statute but lacking in a uniformity provision.
8. Oregon … Now conforms in the most important aspects to the UPEPA, but still lacking in a uniformity provision.
9. Tennessee … Good statute but lacking in a uniformity provision.
10. Texas … Another statute modeled on the California statute and modified to its current form shortly before the UPEPA was completed, but falsely criticized for reasons relating more to the antiquated Texas Practice & Procedure Code than the statute itself.
11. Vermont … Good statute but lacking in a uniformity provision.

Tier “C” States

Average Anti-SLAPP statute, but restricted in scope and/or lacking important protective provisions.

1. Arkansas … Scope restricted to matters involved in a governmental proceeding, and no appeal of right for an unsuccessful movant.
2. Connecticut … Scope restricted to matters involved in a governmental proceeding. No statutory appeal of right for an unsuccessful movant, although court opinions seem to effectively permit such appeals.
3. District of Columbia … Discovery not automatically stayed (although a movant can bring a “Special Motion To Quash”, and no appeal of right for an unsuccessful movant.
4. Guam … No appeal of right for an unsuccessful movant, also potential unresolved constitutional questions relating from employment of the “clear and convincing” standard.
5. Illinois … Allows discovery between the parties upon a showing of “good cause” but no stay of other matters, the stay does not apply during an appeal, no burden shift, and no attorney’s fee award to a successful respondent where the movant has been found to have filed the motion frivolously or for purposes of delay.
6. Indiana … No appeal of right for an unsuccessful movant.
7. Louisiana … No appeal of right for an unsuccessful movant and requirement that respondent must prove a probability of success at trial raises concern of constitutional challenges.
8. Rhode Island … Contains a confusing exception the protection of free speech if it is a “sham”, and court may order discovery between the parties for “good cause” after a hearing which by itself will result in additional litigation, no burden shifting to the respondent, and no appeal of right for the movant if the motion is denied.

Tier “D” States

Poor Anti-SLAPP statute, significantly restricted in scope and without most important protective provisions.

1. Arizona … So restricted in scope as to be nearly worthless and thus is rarely utilized.
2. Delaware … Protections limited to causes of action brought by a “public applicant or permittee”, no stay, no appeal of right to an unsuccessful movant, and attorney fees awarded only if the cause of action was frivolous.
3. Florida … Narrow scope of protection limited to governmental proceedings and statements about media or media-entertainment products. No stay of discovery and no appeal of right for a movant that loses a special motion.
4. Maryland … Scope limited to statements to a governmental body, no appeal of right if the movant loses the motion, no award of fees.
5. Massachusetts … Scope limited to the right of petition, i.e., activities before a governmental body or the courts, no general stay, discovery stayed but may be permitted upon a showing of “good cause”, and no appeal of right if the movant loses the motion.
6. Missouri … Scope limited to statements made in connection with a public hearing or meeting, and no general stay but discovery stayed.
7. Nebraska … Restricted to protecting citizens commenting upon proposed public action, no stay and no appeal of right to an unsuccessful movant.
8. New Mexico … Scope limited to statements made in connection with a public hearing, and no stay.
9. Virginia … Very barebones statute with a limited protection, no stay, no burden-shifting, and no appeal of right for a movant who loses the motion.

Tier “F” States

No Anti-SLAPP statute. The legislatures of these states (and Puerto Rico) are asleep at the switch.

1. Alabama
2. Alaska
3. Iowa
4. Michigan
5. Mississippi
6. Montana
7. New Hampshire
8. North Carolina
9. North Dakota
10. Puerto Rico
11. South Carolina
12. South Dakota
13. US Virgin Islands
14. West Virginia
15. Wisconsin
16. Wyoming

Well, that’s it. As Anti-SLAPP laws do not change very often, I doubt that this will be anything like an annual list. Still, it may be interesting to look back in several years to see where these gaps in Anti-SLAPP law have finally been filled.

Or not.