Washington Enacts New Anti-SLAPP Law

Washington news media received an important new legal tool today, as Governor Chris Gregoire signed an enhanced anti-SLAPP statute. The law, which takes effect June 9, will provide important procedural safeguards against unwarranted defamation suits and similar claims based on news content and other speech.

The legislation protects the public (including the news media) from “Strategic Lawsuits Against Public Participation,” or SLAPPs, which are lawsuits or counterclaims filed to deter or punish statements on issues of public interest. SLAPPs typically include claims such as defamation, malicious prosecution, and interference with contracts, with the goal of discouraging the defendant from engaging in public debate.

Washington led the nation in 1989 by passing the first anti-SLAPP statute, RCW 4.24.510. The law allows a defendant to bring a motion to defeat SLAPP claims, and to recover fines and attorneys’ fees for the cost of defending against the SLAPP claim. However, the statute’s protections were limited to claims based on statements made to government officials in the course of government decision making.

The revised law expands the existing statute in the following ways:

• Broader definition of protected conduct. The law protects not only statements aimed at influencing a government agency or judicial body, but also any public statements and documents submitted to a public forum and “any lawful conduct in furtherance of the exercise of the constitutional right of free speech” that are related to issues of public concern.
• Expedited dismissal procedure. The law provides for early “special motions to strike,” which require SLAPP plaintiffs to demonstrate, at the outset of litigation, that they can establish the required elements of their case with convincing clarity. If the plaintiff is unable to do so, the case will be dismissed. 
• Discovery is put on hold. All discovery and any pending hearings or motions will be postponed until the court rules on the motion. 
• Fines and costs of defending against the claim. As with the previous law, a defendant who prevails on a special motion to strike will be entitled to a fine of $10,000, reasonable attorneys’ fees, and the costs of litigation. A frivolous motion to strike will be subject to similar sanctions. 
• Expedited appeal. Under the law, either party has the right to seek an expedited appeal to a higher court if a court fails to promptly rule on a motion to dismiss. 
• Extensive legislative findings. These should provide guidance to the judiciary when it interprets the statute. For instance, the findings make clear that the law must be applied and construed liberally to bring about the goal of protecting the right of citizens to participate in public debate and without fear of reprisal from SLAPP lawsuits. The legislative findings also acknowledge the need for expedited judicial review and a speedy decision on SLAPP lawsuits.

The Washington bill was drafted by attorneys at Davis Wright Tremaine LLP, who also testified in support of the proposed law. It is modeled after California’s anti-SLAPP statute, which has been used successfully by the news media and other speakers to deter and defeat frivolous defamation claims.