SLAPPing Back a Little Too Hard

I have previously written about anti-SLAPP laws. These laws are designed to discourage lawsuits brought for the sole purpose of causing financial hardship to people who speak out against the plaintiff’s actions, without actually trying to win the suit. Usually, they provide for a procedure to dismiss such suits at an early stage if there really is no serious chance of the plaintiff winning. The Washington anti-SLAPP law, however, was recently ruled unconstitutional because it made getting rid of a possible SLAPP suit too easy.

The Olympia Food Cooperative’s board of directors adopted a boycott of Israeli products. Five members of the co-op sued the board members to have the boycott ended (and to have the co-op recover its resulting losses) arguing that the boycott violated a preexisting co-op policy requiring consensus of the staff. The board (and several former board members who were also named in the suit) moved to have the suit dismissed under Washington’s anti-SLAPP law. The plaintiffs, in turn, argued that the anti-SLAPP law was unconstitutional.

The Washington Supreme Court eventually ruled that the anti-SLAPP law violated the state constitution’s guaranty of a jury trial because the procedure made it too hard to show that the plaintiffs might have a valid case. Under the anti-SLAPP law, the plaintiffs had to show by “clear and convincing” evidence that they had a probability of winning. That’s where the law ran into trouble.

The Washington constitution says that the right to jury trial is “inviolate.” It’s one of the strongest jury trial clauses in any state constitution. Essentially, it means that juries are allowed to decide what the facts are in a case. There are a few exceptions. The most important are cases that seek remedies requiring the judge to make the analysis (such as a divorce or an injunction); cases in which no matter what the facts are, only one side would win when the law is applied; and frivolous cases brought for improper purposes. The court decided that the anti-SLAPP law required judges to decide whether the plaintiffs had a serious probability of winning instead of simply showing enough evidence that they might win. Because the court thought that would require the judge to review evidence instead of a jury, it thought the question was reserved for juries. As a result, it ruled the anti-SLAPP law unconstitutional.

Oregon’s anti-SLAPP law is a little different. It only requires plaintiffs to show that they have enough evidence to present a reasonable chance of winning, and requires review of only their evidence instead of balancing their evidence against the defendant’s evidence. That law was ruled constitutional in 2012. Because the focus of the Oregon law is on whether the evidence is sufficient to go forward instead of the probability of which side would win, I think that the Washington court may uphold a law similar to Oregon’s if the legislature decides to write a new anti-SLAPP law.

For the time being, there is no meaningful protection against SLAPP lawsuits in Washington. This may mean that if you challenge an unscrupulous opponent, and they try to shut you up by suing you, you may have to rely on a general court rule against bringing suits with the intent to harass. Unfortunately, that rule is usually reserved for extreme cases. Unless judges decide to use it more frequently than they have until now, it may be advisable to talk to a lawyer about what can and cannot be safely said in the public arena.

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