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

Say Paul sues Don, claiming that Don libeled Paul. Don may be in the proper, and he may finally win—however it could take lots of time and some huge cash. In consequence, the Dons of the world will usually settle, and comply with take down or retract their statements; the menace even of legally unfounded litigation may silence them.

Due to that, many states have enacted anti-SLAPP statutes, which (usually talking) make it simpler for defendants to shortly get rid of instances introduced primarily based on speech on matter of public concern. (The statutes are sometimes raised in response to libel claims, however additionally they apply to different speech-based claims.) The statutes usually have some mixture of the next options:

1. A proper to maneuver to get the case promptly dismissed.
2. A keep of factual discovery stayed whereas the movement is being thought of.
3. Speedy attraction if the court docket denies the movement to dismiss.
4. Cost by plaintiff of the defendant’s authorized charges if the defendant wins the movement.

The plaintiff can reply to the movement by arguing that he has a legally viable declare. (Usually talking, at this level, earlier than discovery, the court docket does not think about any factual disputes, however focuses on the authorized concern.) But when plaintiff’s declare proves to not be legally viable, defendant wins shortly.

These statutes have usually raised plenty of attention-grabbing authorized questions of their very own, together with whether or not governmental defendants can convey the identical anti-SLAPP claims, if they’re sued primarily based on their speech. The California Supreme Courtroom, for example, held that governmental defendants are certainly entitled to convey anti-SLAPP motions (Vargas v. Metropolis of Salinas (Cal. 2009)), however as we speak the Florida Courtroom of Attraction interpreted the Florida statute otherwise (in Crosby v. City of Indian River Shores, written by Jeffrey Kuntz and joined by Choose Dorian Damoorgian):

We reply a novel query in Florida: can governmental entities depend on Florida’s Anti-SLAPP statute as a protection to lawsuits filed by residents towards the governmental entity? As all statutory questions do, the reply will depend on the precise textual content of the Florida statute.

SLAPP lawsuits, or Strategic Lawsuit Towards Public Participation lawsuits, are “civil lawsuits and counterclaims … filed towards numerous residents, companies, and organizations due to their legitimate train of their proper to petition, together with searching for aid, influencing motion, informing, speaking, and in any other case taking part with authorities our bodies, officers, or staff or the citizens.” See Ch. 00-174, Legal guidelines of Florida.

To cease SLAPP lawsuits, the Florida Legislature enacted the Residents Participation in Authorities Act, Chapter 00-174, Legal guidelines of Florida. The laws—codified at part 768.295, Florida Statutes (2021)—is Florida’s Anti-SLAPP statute. The Anti-SLAPP statute “shield[s] the proper in Florida to train the rights of free speech in reference to public points.” Part 768.295(3) particularly supplies:

[a] individual or governmental entity on this state could not file … any lawsuit … towards one other individual or entity with out advantage and primarily as a result of such individual or entity has exercised the constitutional proper of free speech in reference to a public concern, or proper to peacefully assemble, to instruct representatives of presidency, or to petition for redress of grievances earlier than the assorted governmental entities of this state ….

In our view, the legislature was clear. The Anti-SLAPP statute protects residents from lawsuits filed due to their participation in public points. It’s simply as clear that the Anti-SLAPP statute doesn’t shield a governmental entity from lawsuits filed by its residents.

The Anti-SLAPP statute applies when a “individual or entity [is] sued by a governmental entity or one other individual.” When the “individual or entity” claims the swimsuit violates the Anti-SLAPP statute, the “individual or entity could transfer the court docket for an order dismissing the motion or granting remaining judgment in favor of that individual or entity.” If that fails, “[t]he individual or entity could file a movement for abstract judgment, along with supplemental affidavits, searching for a willpower that the claimant’s or governmental entity’s lawsuit has been introduced in violation of this part.” And, the court docket “could award … the celebration sued by a governmental entity precise damages arising from a governmental entity’s violation of this part.”

If the Legislature meant for “governmental” entities to be protected by the statute, then the Legislature would have written “towards one other individual or entity” as “towards one other individual or authorities entity.” As an alternative, it wrote the other. In every occasion the place it referenced the celebration entitled to the safety of the Anti-SLAPP statute, the statute references individual or entity. And in every occasion the place it referenced the celebration violating the Anti-SLAPP statute, the statute references the governmental entity or different individual.

Moreover, the Anti-SLAPP statute particularly protects:

the constitutional proper of free speech in reference to a public concern, or proper to peacefully assemble, to instruct representatives of presidency, or to petition for redress of grievances earlier than the assorted governmental entities of this state, as protected by the First Modification to the US Structure and s. 5, Artwork. I of the State Structure.

It protects the proper assured to every of us by the First Modification. However “the First Modification protects residents’ speech solely from authorities regulation; authorities speech itself will not be protected by the First Modification.” N.A.A.C.P. v. Hunt (eleventh 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 course of,’ not the Structure,” is one other foundation to conclude the statute doesn’t shield the City….

Right here, Crosby introduced the declare towards a governmental entity, the City. The circuit court docket due to this fact erred when it allowed a governmental entity to depend on Florida’s Anti-SLAPP statute as the bottom for granting its movement to dismiss….

Choose Melanie Could dissented in related half:

As the bulk accurately factors out, the statute doesn’t use the time period “governmental entity” to point who the lawsuit is towards. As an alternative, the legislature selected the time period “entity,” a time period broader than “governmental entity.” Quite than resort to legislative intent or statutory development, my plain studying of the statute signifies the lawsuit’s object can both be an individual or an entity no matter whether or not the entity is governmental. Simply because the City of Indian Shores matches inside each the definition of “governmental entity” and “entity” doesn’t someway imply it isn’t an entity within the broader sense of the time period. It doesn’t remove its safety underneath the statute….

Whereas I discover conventional canons of statutory interpretation pointless contemplating the textual content’s plain that means, I consider they lend additional assist to my place and stop us from limiting the statutory provision at concern. “With out some indication on the contrary, common phrases are to be accorded their full and truthful scope” and “are to not be arbitrarily restricted.”

Courts have been expressly cautioned not to “infer exceptions for conditions that the drafters by no means contemplated and didn’t intend their common language to resolve” when confronted with usually worded provisions. As an alternative, “[t]he presumed level of utilizing common phrases is to provide common protection—to not go away room for courts to acknowledge advert hoc exceptions.” “[I]n the top, common phrases are common phrases, they usually should be given common impact.”

Right here, an individual filed a lawsuit towards an entity, the City of Indian Shores, whose council members exercised their constitutional free speech rights in reference to a public concern. Part 768.295(3), Florida Statute (2021) protects the entity, albeit governmental, from such a swimsuit….

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