Florida Bar Journal: "FLORIDA’S EXPANDED ANTI-SLAPP LAW: MORE PROTECTION FOR TARGETED SPEAKERS"

FLORIDA’S EXPANDED ANTI-SLAPP LAW: MORE PROTECTION FOR TARGETED SPEAKERS

Vol. 90, No. 9   November 2016   Pg 16 Samuel J. Morley Featured Article

The 2015 Florida Legislature’s passage of C.S./S.B. 13121 expands the state’s anti-SLAPP provisions giving courts procedural tools to throw out lawsuits early if primarily used to attack comment on public matters. Prior to the bill’s passage, Florida’s SLAPP protections were sharply limited to a narrow class of plaintiffs and activities. The 2015 law (“expanded” or “new law”) extends SLAPP protections to cover private plaintiff suits and specified speech activities.

In light of this expansion, courts may see an uptick in early pre-trial, anti-SLAPP motions filed by a variety of defendants and in a variety of causes of actions. Because the new law leaves intact standards that have never been precisely defined and significantly broadens the scope of speech that is protected under the law, courts will be applying a law with little precedent behind it.2 This article discusses the history of the Florida law and the new changes regarding anti-SLAPP legislation, and then analyzes some of the language (both new and old) that is important to the law’s operation and scope as well as expedited procedures that remain under the new framework.

Background
SLAPPs (strategic lawsuits against public participation)3 are legal actions brought against concerned citizens, bloggers, journalists, businesses, and other entities involved in speaking out on issues of concern to the public. In these suits, a plaintiff sues a speaker alleging defamation or other civil wrong not for the purpose of pursuing a case for damages but, rather, with the primary motivation to intimidate the target into silence by the sheer burden and expense of having to defend the suit.4If the target or others are silenced because of the lawsuit, the plaintiff “wins” in attacking defendant’s First Amendment rights and the consequence is a limited or warped debate on an issue of public concern.5

SLAPPs can be brought by different types of plaintiffs against a wide variety of targets. Neighbors opposing building projects may be sued by a land developer. Similarly, consumers or competing businesses voicing or posting complaints about a product or service may find themselves the target of a SLAPP by the seller or manufacturer. Even political statements made during campaigns can draw such suits.6  Traditional sanctions available for frivolous actions (such as recovery of attorneys’ fees)7 are insufficient to counter SLAPPs because often they are unavailable until the conclusion of the lawsuit even though the mere filing and pendency of the lawsuit and its associated cost chills speech. Effective anti-SLAPP statutes make it easier and cheaper to terminate such a lawsuit at early stages.

A majority of the states now have some version of an anti-SLAPP statute, but they vary greatly, ranging from narrow to broad.8 Some states provide SLAPP protections for only certain classes of persons or require that the targeted public participation be in connection with an issue under review by a governmental body.9 Other states offer far more comprehensive protection of public participation or statements about any issue of public interest.10

Since combating SLAPPs early in the proceeding is important, almost all anti-SLAPP laws have some requirement for expeditious resolution of the motion. Many states also allow the defendant to recover reasonable attorneys’ fees when it prevails on a SLAPP motion.11

History of Florida’s SLAPP Laws 
• The 2000 Law and Related Laws — In 2000, following many years of opposition to the measure by some groups, Florida enacted its original anti-SLAPP law, the Citizen Participation in Government Act.12 When it finally passed, the result was a very narrow law that prohibited “governmental entities” from filing lawsuits (which in practice, was hardly, if ever, done) against a person or entity “without merit” and “solely because” the person or entity exercised the constitutional right “to petition for redress of grievances before the various governmental entities of the state.”13

The act provided for expeditious hearing of either a motion to dismiss and/or summary judgment. It allowed the court to award actual damages to a defendant in a SLAPP suit by a governmental entity and required the award of attorneys’ fees and costs to the prevailing party.14

• The 2015 Amendments — Unlike earlier anti-SLAPP efforts, the 2015 bill expanding Florida’s anti-SLAPP law proceeded through the process in a bipartisan manner without controversy guided by its sponsors, Senator David Simmons (R) and Representative Jared Moskowitz (D). It received unanimous Senate committee and floor support and nearly unanimous support by the House. It was signed into law by Gov. Rick Scott on May 21, with an effective date of July 1, 2015.

The bill’s language piggybacks on the general existing law but broadens the scope of SLAPP suits to include those brought by “persons” (not just governmental entities) and extends protected activities to public-issue free speech (not just petitioning activities). These and other changes to the defense are primarily contained in paragraph (3), which is noted as follows (underlined language new; struck through language deleted):

“(3) (4) A person or No governmental entity in this state may not shall file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another a person or entity without merit and primarily solely because such person or entity has exercised the constitutionalright of free speech in connection with a public issue, or right to peacefully assemble, the right to instruct representatives of government, or and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.”

Importantly, the term “free speech in connection with public issues” referenced above is defined in paragraph (2)(a) to “mean”:

“any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.”

The new law retains the mandatory award of attorneys’ fees to prevailing parties, which now includes prevailing defendants in not only governmental SLAPP suits but also private party actions, as well.15 The new law also retains the early pre-trial motions, affording SLAPP defendants a much earlier opportunity to dispose of these frivolous lawsuits.16

Analysis of the Law’s Scope and Operation
Although the purpose of anti-SLAPP laws has always been clear — to stop abusive lawsuits brought to chill speech — the Florida law (both the original act and the 2015 amendments) implementing that purpose is less so. Florida’s model, while clearly intended to provide broad protections for certain forms of speech, especially speech in media formats, is silent as to certain issues, which are often procedural in nature but can affect substantive rights. Unlike many states, Florida’s version does not contain any special burden shifting, burden of proof, motion to strike, or discovery provisions to help flesh out the details of SLAPP dismissals. Further, as noted, there have been limited opportunities for Florida courts to weigh in on the earlier narrow law. However, the broad protections found in the statute must be interpreted with such requisite procedural protections for the law to achieve its purpose.

Generally, in reviewing this language for the scope of speech covered, (and other areas of the law) courts will be subject to rules of statutory construction. First, they will be obligated to give clear language its plain meaning to carry out the text of the law. When the language of a statute is clear and unambiguous, the language should be given effect without resort to extrinsic guides to construction.17 Courts will construe unclear or conflicting language in a way that gives effect to the “polestar” of legislative intent,18 with the caveat that there must be “hopeless inconsistency” before rules of construction can “defeat the plain language” of the statute.19

Further, lacking clear statutory guidance or their own precedent, Florida courts can consider how other state and federal courts have dealt with similar anti-SLAPP language.20 California was one of the first states to adopt an anti-SLAPP law and it is a primary influence in other states including Texas, 21 and, directly or indirectly, Florida’s model. With that in mind, California courts, as well as other state courts with anti-SLAPP laws, break down the analysis of the anti-SLAPP defense into two general steps or parts.

First, courts inquire if defendant’s free speech or petitioning activity underlying plaintiff’s cause of action is within the scope of activities protected by the anti-SLAPP statute in question, including whether it “arises from,” or in Florida’s version, is “primarily because” of the defendant’s exercise of First Amendment activities. If that showing is made, the burden shifts to plaintiff to show his or her complaint has sufficient merit and, therefore, is unsuitable for early termination.22 Although Florida’s law is silent in regard to burden shifting or standards of proof, this general two-step framework seems appropriate in examining the law’s purpose and is employed below.

Scope of Speech Activity Protected
In order to understand the extent of speech that comes within the purview of Florida’s anti-SLAPP protection, the scope and meaning of the new free speech provisions of the law, though brief, must be addressed. Specifically, the legislative intent of the law found in paragraph (1) is to protect the rights “of free speech in connection with public issues, and the rights to [assemble and petition].” It is the state’s “policy” for persons to “not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues” and that “prohibiting such lawsuits” will preserve that policy.

The operative part of the new law found in paragraph (3) prohibits any “lawsuit, cause of action, [or] claim” brought because a defendant has exercised his or her “right of free speech in connection with a public issue.” As noted above, this phrase is given further meaning by the definition in new paragraph (2)(a), which states it “means any…statement…made” either a) “before a governmental entity in connection with an issue under consideration” or b) “in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.”

In addressing this structure — which appears to be unique to Florida — the major interpretive question is how the overall concept of “public issue” is to be construed, and in particular, whether a separate showing of a public issue connection is required by defendant. This issue is extensively discussed below followed by other less-central aspects of the language’s scope.

Is a Public Issue Showing Required? 
Paragraph (1) says state policy is preserved by prohibiting SLAPP “lawsuits as herein described.” Paragraph (3) describes those prohibited lawsuits as those brought because a person has exercised “free speech in connection with a public issue.” That phrase is, in turn, defined in paragraph (2)(a) to mean a “statement” either 1) made before a governmental entity in connection with an issue under consideration or 2) contained in one of the listed formats.

The paragraph (2)(a) definition implicates “public issue” speech if either of the input phrases is true. There is no requirement that defendant specifically show pending public issue relevance in order to claim protection under the anti-SLAPP law. So long as the statement has the required connection, even arguably private speech can come within the ambit of the defense. (Although, notably, if such connection is in fact found, the inquiry would not end there: The court would still have to find plaintiff’s claim “without merit,” as discussed below.)23

This construction derives from the plain, unambiguous language of the definition. But it is also consistent with the overall intent of §768.295(1), which is to prohibit lawsuits against “public participation” and to protect “free speech in connection with public issues.”

Specifically, the “made before a governmental entity in connection with an issue under consideration” clause makes a “public issue” showing unnecessary because the public nature of the expression is inherent in the fact that it is communicated and considered before a governmental forum in connection with an issue under review. This provides the court with a bright-line test as to what constitutes a “public issue” per se without the necessity of a “public issue” showing and provides efficient resolution of a large class of motions while at the same time avoiding court objections about what issue truly possesses public significance.

Similarly, the clear meaning of the definition does not require a public issue showing for speech contained in or connected to one of the listed media formats like a play, book, or news report. Notably, the staff analysis written before and during the bill’s committee review construed the language in this manner:
“The bill does not appear to require that speech made through these forms of media relate to a ‘public issue.’ If the [l]egislature intends to link the speech protections provided in the bill to the discussion of public issues or participation in government, it may wish to revise the bill accordingly.”24

The legislature chose not to change the broad language or to otherwise require a special showing of “public issue.” This clear legislative intent further reaffirms the plain language of the statute bypassing any separate showing.

This structure also reflects the legislature’s considered policy judgment. Even though it requires no specific governmental forum connection, the speech must be connected to some form of public media whether it be a “book,” “audiovisual work,” or a work “similar” to those previously listed. The clause appears to be inserted for the same reason as the first — to operate as clear demarcation in identifying public issue speech that the legislature intended to pass at least the first step of the anti-SLAPP analysis. Books and plays, for example, are easily identifiable, highly protected forms of conveying information to the public about public issues. It seems logical that the legislature, wary of the amorphous nature of the term “public issue”(discussed below), substituted the easily understood concept of media format as providing the context for public issue speech in much the same way as a statement made before a government body on an issue it is considering. This interpretation gives speech in media the presumption of public concern but at the same time does not automatically foreclose a cause of action by plaintiffs since plaintiffs’ action still must be examined for merit (see below).

Further, by purposefully omitting a public issue showing from mediated formats, the law properly restrains courts from substituting their editorial judgment for that of the publisher. In essence, the legislature has recognized that editorial decisions are best left to the speaker, and when speech occurs in the specified media, it is presumed to be of public concern.

Briggs / Felis / Yount — A few courts in other states have reviewed the “public issue” showing requirement in the context of their own state’s anti-SLAPP protections. In California, for example, appellate courts several years ago grappled with the public issue language after the state adopted one of the earliest anti-SLAPP laws. The California language said “in connection with a public issue” “includes…any statement before a legislative, executive, or judicial proceeding” or “any statement made in connection with an issue under consideration or review by a legislative, executive or judicial body.”25 The court faced the question of whether these two clauses (having no specific reference to “public issue,” as is contained in two later clauses) require defendants to make a separate showing of a “public issue.”26 After a split opinion among the state’s lower appellate courts, its supreme court in Briggs v. Eden Council for Hope and Opportunity, 969 P.2d 564 (Cal. 1999), held the section encompassed plaintiff’s action without a separate “public issue” requirement.

Briggs viewed the law as safeguarding free speech and petition conduct aimed at advancing self-government as well as conduct aimed at more “mundane pursuits.”

While noting that the California Legislature expressed a desire to encourage participation in matters of public significance, this did not imply it intended to impose in the law’s operative sections an “across the board ‘issue of public interest’ pleading requirement.”27 Without an “issue of public interest” limitation, a clear litmus test remained that would allow trial courts to resolve a large class of SLAPP disputes quickly. As the court stated, “under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.”28

While Briggs remains good law in California, and has been cited repeatedly over the years, appeals courts in other states have taken a different view of basically the same language. These include Felis v. Downs Rachlin Martin, PLLC, 2015 Vt. Lexis 110 (Oct. 16, 2015), in which the Vermont Supreme Court decided its state’s similar anti-SLAPP law required a determination of a “public issue connection” in order to invoke the law’s protection for the targeted divorce proceeding testimony.29 Similarly, in Yount v. Handshoe, 2015 La. App. Lexis 1071 (La. App. 5th Cir. 2015), a Louisiana appellate court rejected Briggs’ view in construing its identical anti-SLAPP clauses regarding a blog post connected to a contentious divorce proceeding.

For various reasons that are beyond the scope of this article, the rationale in Briggsseems more persuasive than that in Felis and Yount. To the extent the Florida language somewhat parallels those laws, Briggs seems to offer the better reasoned approach. However, at the same time, it is also important to recognize that there are important differences in Florida’s structure that arguably makes all these cases inapplicable. Specifically, these other state clauses encompass speech not only “made before” a governmental body but also a broader category of speech “made in connection with an issue” under review by a governmental body. Thus, in these states, speech covered by anti-SLAPP protection can be either before the official proceeding “or” speech made completely outside of it. Florida’s clause one, on the other hand, contains no “or” and is narrower. That language requires the speech to be both “made before a governmental entity” and “in connection with an issue under consideration or review by a governmental entity.” For example, purely extra-judicial statements arguably would not be covered under this clause. Thus, for example, if a blogger made a statement like the one in Yount relevant to an issue under consideration by a court, arguably this would not be covered under Florida’s clause one (because it is not a statement “made before” that body). Even so, it is noted that the blogged speech could still be covered in Florida’s clause two if it is found to be connected with one of the formats listed in the second clause or a work “similar” to those listed. Thus, as can be seen, the above cases while interesting, will probably not provide the last word with regard to the analysis applied to Florida’s language.

Amorphous Term — What Briggs and other cases do make clear is that reading a separate public issue into the law quickly leads to a difficult question — one that the legislature apparently was trying to short-circuit. That is, how exactly is a defendant to make this showing and on what basis will a court make its finding? The statute does not define the term “public issue” nor have Florida courts addressed it in the SLAPP or other context. In fact, other state courts have found it to be “inherently amorphous,” and not lending “to a precise, all-encompassing definition.” 30 State laws have varying definitions of the term or related terms.31 In short, if a court construes the law to require a showing, Florida courts would face the same arduous task of providing guidance on an innately elusive and confusing term — a task that is avoided by the law’s omission of such showing in favor of a contextual connection.32

What Media Formats Are Covered?
Another aspect of the scope of the second clause is its sweep of statements subject to at least step one of the anti-SLAPP analysis. This appears to be quite broad. The clause references statements made “in or in connection with” a play, movie, book, news report, etc. The plain meaning covers speech contained not only “in” a play, movie book, etc., but also speech “connected” to it. For example, challenged statements contained in advertising on the book’s jacket, even if purely promotional in nature, should be protected along with the contents.

Further broadening the phrase’s scope is its reference to speech made in or in connection with a play, movie, etc., “or other similar work.” While the covered work will be easy to identify in many cases, the “other similar works” catch-all should protect less traditional formats like a blog, tweet, or other digital format that is similar to those actually listed. If the format is designed to communicate to or elicit viewpoints from members of the public on issues of public interest, it is hard to see any distinction in gathering and dissemination of news by a traditional media organization.33

Meaning of “Primarily Because” 
Assuming defendant’s speech actually falls within the cited definition discussed above, the inquiry about what speech is potentially subject to protection does not end there. Such speech must also be the primary (although not sole) cause of plaintiff’s lawsuit. That is so because the §768.295(3) prohibition specifically applies to lawsuits brought “primarily because” of the protected speech (or petitioning activities). Such a causal link, however, as further noted below, arguably does not entail an inquiry of plaintiff’s intent but is derived from a review of the papers filed.

Other state anti-SLAPP laws have language similar to Florida’s “primarily because” phrasing. These statutes state, for example, that for anti-SLAPP procedures to apply, defendants must show that plaintiff’s claim “arises out of,” “arises from,” or is “based on” defendant’s conduct in exercising the protected First Amendment activities.34

Courts interpreting this phrasing observe that the anti-SLAPP statute’s focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.35 Thus, the court will not evaluate the required connection between plaintiff’s lawsuit and defendant’s activities solely through the lens of a plaintiff’s cause of action. It is up to the court to “determine exactly what act of the defendant is being challenged by the plaintiff…” as revealed from “review[ing] primarily the complaint but also papers filed in opposition to the [anti-SLAPP] motion to the extent they might give meaning to the words in the complaint.”36

Further, whether the plaintiff’s action “arises from” protected activity does not require additional proof of plaintiff’s subjective intent nor a demonstration that the action has had a chilling effect on the exercise of such rights.37 Rather, any claimed “illegitimacy” of the defendant’s acts should be an issue that will be taken up when the court considers if plaintiff’s claim against defendant lacks merit.

Importantly, when the Florida Legislature passed the new law, it inserted “primarily because” in place of the earlier law’s “solely because.” Thus, the new language appears to broaden the range of lawsuits a defendant’s anti-SLAPP motion can counter. Now, for example, even if plaintiff brings a single “mixed” claim or a series of claims based on protected and unprotected acts, the anti-SLAPP defense is still available if the protected speech is the “primary” reason or basis for the lawsuit. For multi-claimed complaints, each claim presumably would have to be reviewed to see if the required connection is present.

How should a court decide if so-called “mixed” claim or claims are filed “primarily because” of protected activity? Some courts examining the “arise from” language in their state statutes endorse a “gravamen” test for “mixed’ causes of action in determining if the required connection to protected activities exists. This test states that it is the “principal thrust” of the plaintiff’s cause of action that determines if the anti-SLAPP statute applies. If the allegations referring to protected activity are only “incidental” to a cause of action based essentially on non-protected activity, “collateral allusions” to protected activity should not subject the claim to the anti-SLAPP statute.38 However, courts are also clear that claims are not “merely incidental” simply because they represent a small number of alleged wrongful acts.39 The tests articulated above in the “arising from” cases seem to provide one path forward for Florida courts and parties to manage their own law’s “primarily because” language, but this will not be clear until the question is addressed.

Is a Plaintiff’s Claim “Without Merit?” 
The discussion above focuses on the court’s determining whether the anti-SLAPP law covers a defendant’s protected First Amendment activities. In its review, the court may find no such coverage. If no such coverage is found, the claim is unsuitable for early termination and the matter ends there with a denial of the defendant’s anti-SLAPP motion.

On the other hand, if the activity is deemed covered, the court must then examine the other side of the coin, that is, the substance of plaintiff’s cause of action. That is required because §768.295(3)’s SLAPP prohibition applies only to plaintiff’s actions or claims brought “without merit.” Like other states, the Florida Legislature presumably included this merits test to weed out and “preserve appropriate remedies for [those plaintiff’s claims] involving speech by ensuring that claims with the requisite minimal merit may proceed.”40

The term “without merit” was included in the original statute without definition and remains so in the expanded version. Although there are no Florida SLAPP appellate cases addressing the term, Florida courts in non-SLAPP contexts ( e.g. , sufficiency of complaint on motion to dismiss) have interpreted “without merit” to mean “the absence of sufficient facts to make a good claim or to state a cause of action.”41 Other state laws ( e.g. , California and Louisiana) use merit-based language, requiring plaintiffs to show “a probability of success on the merits.” Numerous federal and state judicial decisions, in turn, address this term. Basically, they subject SLAPP dismissal only to actions that “lack even minimal merit” which is deemed to be the case in which plaintiff has not “stated and substantiated a legally sufficient claim.” Put another way, the complaint must be “both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”42

These courts clarify that the purpose of an anti-SLAPP motion is merely to resolve the question of whether merits may exist without evaluating whether plaintiff’s claim will succeed. The purpose of the motion is not to determine if the defendant actually committed the relevant tort, nor does it ask if the plaintiff has proved his or her claim.43 Rather, it asks whether the plaintiff has shown “a sufficient probability of being able to prove her claim,” which “is akin to a court determining only that a plaintiff has presented a threshold showing that allows her claim to proceed.”44

With those cases and standards in mind, what procedures will Florida courts determine if a potential SLAPP complaint is “without merit”? As previously noted, many state anti-SLAPP laws allow defendants to file a special motion to strike. Once defendant shows the activity falls with the scope of the anti-SLAPP law, the burden is placed squarely on plaintiff’s shoulders to demonstrate some level of merit or “probability of success” to avoid dismissal. This makes sense because the only way a court can determine whether the suit is meritless is through an examination of whether the plaintiff has demonstrated a probability of success on the merits.45Florida’s framework, of course, lacks any special motion to strike and burden shifting. It does, however, provide for expeditious motions to dismiss and/or for summary judgment. Thus, Florida courts and parties will look to these tools to resolve which lawsuits lack merit and are subject to early disposal.

Motion to Dismiss — In reviewing motions to dismiss, the court must accept the factual allegations in the “four corners” of the complaint as true and draw all reasonable inferences in favor of the plaintiff.46 A plaintiff can overcome a motion to dismiss by simply alleging facts sufficient to state a claim plausible on its face. Despite the motion’s narrow focus, in some cases where speech is attacked, a motion to dismiss may be the best way to raise the anti-SLAPP defense.

The reasons are due to court decisions clarifying that dismissal based only on the pleadings is appropriate when plaintiff fails to allege enough facts to state a claim that actually is plausible on its face and that conclusory allegations or legal conclusions masquerading as facts are not entitled to an assumption of truth. 47 Also, court-developed constitutional limits impose special burdens and standards of proof on speech-related claims in defamation actions involving public figures or issues of public interest.48 Finally, some forms of speech are not actionable at law, such as, for example, statements of pure opinion; privileged statements made in the context of public proceedings and/or fair reporting; and substantially true speech or that not capable of defamatory effect. Some or all of these court-developed doctrines may support such a motion.

• Summary Judgment — On the other hand, a summary judgment motion is appropriate when extraneous evidence is needed to justify early dismissal by the judge. The well-developed case law is that the movant/defendant bears the initial burden to establish (through affidavits, depositions, etc.) that there are “no genuine issues of material fact” and once this showing is made, the burden shifts to the plaintiff/nonmovant to come forward with opposing evidence to show the existence of a disputed issue of material or triable fact.49 As with any summary judgment motion, the judge cannot make credibility determinations or assessments to resolve disputes before trial.50

Interestingly, courts applying California and the virtually identical Louisiana anti-SLAPP “probability of success” motion-to-strike dismissal standards have likened them to summary judgment dismissal standards and, in fact, find them interchangeable. 51 So, if disputed issues of material fact are found, the special motion should not be granted. These courts reason that while neither motion allows judges to make credibility assessments to resolve disputed issues of material fact before trial, plaintiff must still move forward by showing a “probability of prevailing,”52 which entails a determination that the complaint is both legally sufficient and supported by a sufficient prima-facie showing of facts to sustain a favorable judgment. Importantly, these courts emphasize that plaintiff’s burden in this regard is a “difficult” one justified by the importance of the interest at stake — protecting free speech.53

How will Florida courts employ its own summary judgment process in winnowing out meritless SLAPPs? Granted, Florida’s law does not include the “probability or likelihood of prevailing” language found in the other state laws, and thus plaintiff is not required to make this showing. However, under Florida’s summary judgment procedure, once defendant meets his or her burden of proving no genuine issue of material fact exists, it is plaintiff’s burden to respond with evidence of his own showing there are such factual issues in dispute. Failing this burden, plaintiff’s complaint is “without merit” and should be dismissed. In determining if plaintiff has met this burden, it is noted that Florida courts apply different levels of scrutiny to pretrial motions in certain types of cases. For example, “special caution” is exercised in negligence cases because the facts are peculiarly within the knowledge of the movants and experts.54 Conversely, cases involving free speech rights, such as defamation cases, are particularly suited for pretrial disposition because of “the chilling effect” these cases have on First Amendment rights.55 For example, when the actual malice test applies, “summary judgments are to be more liberally granted.”56In a similar vein, arguably anti-SLAPP summary judgments involving protection of valuable speech should be liberally granted. Specifically, if and when plaintiff’s burden arises to show triable issues, it should be viewed as a “difficult one,” in the same manner as is plaintiff’s burden to overcome a similar special motion to strike.

• Which Motion? — Counsel will have to choose cautiously which motion to file regarding each of plaintiff’s counts or whether to proceed under both as alternate theories. The motions have separate purposes, one to test the legal sufficiency of a complaint to state a cause of action and the other to determine if the parties can offer sufficient proof to support the issues framed. Hopefully, the appropriate motion(s) will allow courts to quickly test the merits of plaintiff’s complaint and allow speedy dismissal of deserving lawsuits. If not, defendants may be entangled in burdensome litigation, defeating the law’s central purpose of fast SLAPP suit resolution and revealing a substantial flaw in the legislation.

Conclusion
As more anti-SLAPP motions are filed, courts should follow the plain text in construing the scope and operation of the law’s provisions. Likewise, defendants, in raising the SLAPP defense, will have to determine the best procedural option to rapidly attack deserving lawsuits. As more motions are filed and courts weigh in, the new law should add protections against unwarranted SLAPPs, and more open petition and debate on issues of public concern.

1 Ch. 2015-70, L.O.F.

2 In Fla. Fern Growers Ass’n v. Concerned Citizens, 616 So. 2d 562, 570 (Fla. 5th DCA 1993) the court rejected the “sham test” other state courts had used to impose a heightened pleading standard for petitioning activity based on the “ Noerr-Pennington doctrine” line of U.S. Supreme Court decisions. SLAPPs are briefly discussed but at a point in time before any Florida anti-SLAPP law existed.

3 See George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996); Pring and Canan originally came up with the term, which is now a widely used acronym.

4 See, e.g. , The Florida Senate Committee on Judiciary, Issue Brief 2009-332, Strategic Lawsuits Against Public Participation 1 (Oct. 2008), available at http://archive.flsenate.gov/data/Publications/2009/Senate/reports/interim_reports/pdf/2009-332ju.pdf.

5 See, e.g., Public Participation Project, FAQs About SLAPPs, http://www.anti-slapp.org/slappdash-faqs-about-slapps/ ; Strategic Lawsuits Against Public Participation, http://legal Strategic+Lawsuits+against+Public+Participation; Reporters Committee for Freedom of the Press, Anti-SLAPP Laws, http://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/anti-slapp-laws-0.

6 See John C. Barker, Common Law and Statutory Solutions to the Problem of SLAPPs, 26
Loy. L.A. L. Rev. 395 (1993). SLAPP suits proceed in many procedural forms such as a complaint, counterclaim and cross-claim. As a result, the parties involved are sometimes referred to as “filers” and “targets” instead of plaintiffs and defendants. In this article the party bringing the SLAPP action, regardless of its form, will be referred to as the plaintiff and the party filing the anti-SLAPP motion will be referred to as defendant.

7 Fla. Stat. §57.105.

8 Public Participation Project, State Anti-SLAPP Laws, http://www.anti-slapp.org/your-states-free-speech-protection/.

9 These states include Massachusetts, Maine, Minnesota, Nevada, and Rhode Island.

10 See, e.g., Louisiana Code of Civ. P. art. 971.

11 735 Ill. Comp. Stat. 110/25(2012); Minn. Stat. §554.04 (2012); Nev. Rev. Stat. §41.660(2011); Ind. Codes §34-7-7-8 (2012); Mo. Rev. Stat. §537.528.

12 Ch. 2000-174, L.O.F.

13 Fla. Stat. §768.295(4) (2014).

14 Fla. Stat. §768.295(5) (2014). In addition to this general act, subsequent legislation expanded SLAPP protections to private lawsuits against property owners speaking or petitioning regarding condominium or homeowners’ associations. See §§718.1224 and 720.304. Like the general anti-SLAPP law, these anti-SLAPP laws also contain expeditious resolution requirements and damage and attorneys’ fee award provisions for prevailing defendants. §718.1224(3); §720.304(4)(c).

15 Fla. Stat. §768.295(4) (2015).

16 Specifically, defendants can “move the court for an order dismissing the action or granting final judgment in favor to that [defendant]” and/or “file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the…lawsuit has been brought in violation of this section.” If a §
768.295(4) motion is filed, defendant “has a right to an expeditious resolution of a claim that the suit is in violation of this section” and the court must set the hearing “as soon as practicable,” and hold it “at the earliest possible time after the filing of the [plaintiff’s] response.”

17 Lamont v. State, 610 So. 2d 435 (Fla. 1992) (“[E]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.”) Lamont quoting St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982) (quoting Van Pelt v. Hilliard, 78 So. 693, 694 (1918)).

18 See State v. J.M., 824 So. 2d 105, 109 (Fla. 2002).

19 Agency for Health Care Admin. v. Estate of Johnson, 743 So. 2d 83, 87 (Fla. 3d DCA 1999); Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2004).

20 See, e.g., Bautista v. State, 863 So. 2d 1180, 1183 (Fla. 2003).

21 Texas courts have noted the influence that the California decisions have had in the context of their own recently enacted broad anti-SLAPP statute, which, like Florida’s, passed with little public opposition. As Texas Justice Bob Pemberton noted in a recent case, despite the “antipathy that today’s Texas policymakers are sometimes known to express toward the Golden State’s…policies,” Texas courts recognize that “various features of the California statute have been litigated over the years, and these decisions like decisions from other states construing similar laws, can sometimes provide guidance regarding comparable…provisions.” Serafine v. Blunt, 2015 Tex. App. LEXIS 4517 at *85-86.

22 Conversely, if the court concludes that defendant’s petitioning or speech activities do not fall within the meaning of the anti-SLAPP statute, it need not address the second prong to determine whether plaintiff’s claim is “without merit.” See, e.g, Kalter v. Wood, 67 Mass. App. Ct. 584, 591 (Oct. 19, 2006).

23 See, e.g., Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (2003); Johnson v. Ryan, 186 Wn. App. 562, Court of Appeals of Washington (Mar. 19, 2015).

24 Bill Analysis and Fiscal Impact Statement dated March 18, 2015, paragraph VII at 3.

25 Cal. Code Civ. Proc. 425.16(e).

26 Id.

27 Briggs, 969 P.2d at 571.

28 Id. at 570 (quoting Braun v. The Chronicle Publ’g Co., 52 Cal. App. 4th 1036 (1997)).

29 Id. at *39.

30 See, e.g., Stutzman v. Armstrong, LEXIS 129204 at *16 (D.C. E.D. Cal. 2013). Seefollowing statutes containing similar terms: (Washington) R.C.W. 4.24.525(2)(d) (“issue of public concern”); (Georgia) O.C.G.A. §9-11-11.1(b) (“public interest or concern”); (Louisiana) La. C.C.P. art. 971 A. (1) (“public issue”). Some courts have tried developing tests to determine if a defendant’s activity is sufficiently connected to a public issue or interest to warrant protection. These seem to be themselves quite loose. For example, the term “does not equate with mere curiosity,” “should be something of concern to a substantial number of people,” and is not “a matter of concern to…a relatively small, specific audience.” Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (2003); see also Cross v. Cooper, 197 Cal. App. 4th 357, 373 (2011); Johnson v. Ryan, 186 Wn. App. 562 Court of Appeals of Washington (Mar. 19, 2015); Hilton, 599 F.3d at 906.

31 See, e.g., Tex. Civ. Prac. & Rem. Code §27.001(7) (“matter of public concern” defined to include an issue related to a) health or safety; b) environmental, economic, or community well-being; c) the government; d) a public official or public figure; or e) a good, product, or service in the marketplace); D.C. Code §16-5501(3) (issue of public interest means “an issue related to health or safety; environmental, economic, or community well-being; the [d]istrict government; a public figure; or a good, product, or service in the market place”).

32 Florida courts have addressed “public concern” in a defamation context saying it is determined from “a consideration of the statement’s content, form and context as revealed by the whole record.” Rabren v. Straigis, 498 So. 2d 1362, 1363 (Fla. 2d DCA 1986) (performance of harbor pilots in guiding seagoing vessels is a matter of concern not only for the safety of the vessels but for the public in general). See also Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) (discussing what public concern means in privacy claim context). Other courts simply broadly state that an “issue of public interest” is any “issue in which the public is interested.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 (2008); D.C. v. R.R. , 182 Cal. App. 4th 1190, 1227 (2010). The cases do seem to agree that a plaintiff need not be a public figure in order for the defendant’s conduct to have a “public issue” connection. Aronson v. Dog Eat Dog Films, Inc. , 738 F. Supp. 2d 1104,1111 (U.S.W.D. Washington 2010); Mullen v. Meredith Corp. 271 Ore. App. 698, 706-707 (2014).

33 See, e.g., Ingels v. Westwood One Broadcasting Services, Inc. , 129 Cal. App. 4th 1050, 1068 (2005).

34 See, e.g., O.R.S. 31.150(2)(d) (Oregon); 12 V.S.A. §1041(a) (Vermont); Cal. Code Civ. Proc. §425.16 (California).

35 Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228, 1244 (2005); Dible v. Haight Ashbury Free Clinics, Inc., 170 Cal. App. 4th 843, 849 (2009).

36 Dible, 170 Cal. App. 4th at 849.

37 Navellier v. Sletten, 29 Cal. App. 4th 82, 88 (2002).

38 Scott v. Metabolife Internat., Inc. , 115 Cal. App. 4th 404, 413-14 (2004); Brenton v. Metabolife Internat. Inc., 116 Cal. App. 4th 679, 685 (2004); Martinez v. Metabolife Int’l, Inc. , 113 Cal. App. 4th 181, 188 (2003); Alaska Structures, Inc. v. Hedlund, 323 P.3d 1082, 1084 (2014).

39 Martinez, 113 Cal. App. 4th at 188 .

40 Navellier v. Sletten, 29 Cal. 4th 82 at 94.

41 Ellison v. Ft. Lauderdale, 175 So. 2d 198, 200 (Fla. 1965).

42 Navellier, 29 Cal. 4th 82 at 89.

43 Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003).

44 Henry v. Lake Charles Am. Press LLC, 566 F.3d 164, 176 (5th Cir. 2009).

45 See Julia A. Keck, Recent Development: The Fifth Circuit “SLAPPs” Back: Immediate Appeal of Anti-SLAPP Motions Under the Collateral Order Doctrine in Henry v. Lake Charles American Press, LLC, 84 Tul. L. Rev. 1335, 1343 (May 2010).

46 Ruiz v. Brink’s Home Sec., Inc., 777 So. 2d 1062,1064 (Fla. 1st DCA 2001); Tillett v. BJ’s Wholesale Club, Inc., U.S.M.D. 2010 U.S. Dist. LEXIS 79443 at *8-9; Randles v. Moore, 780 So. 2d 158 (Fla. 2d DCA 2001).

47 Tillet v. BJ’s Wholesale Club, Inc. , 2010 U.S. Dist. LEXIS 79443 at *8-9 (M.D. Fla. 2010).

48 See Nodar v. Galbreath, 462 So. 3d 803, 808 (Fla. 1984).

49 See, e.g., Miccosukee Tribe of Indians of Fla. v. Lewis, 2015 Fla. App. LEXIS 4214 (Fla. 3d DCA Mar. 25, 2015).

50 Security First Fed. Sav. & Loan Ass’n v. Broom, Cantrell, Moody & Johnson, 560 So. 2d 304, 307 (Fla. 1st DCA 1990).

51 Lozovyy v. Kurtz, 813 F.3d 576, 583-584 (5th Cir. 2015).

52 Id.

53 Id. at 585; Henry, 566 F. 3d at 175, 182 (quoting Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) .

54 Holl v. Talcott, 191 So. 2d 40, 46 (Fla. 1966).

55 Stewart v. Sun-Sentinel Co. , 695 So. 2d 360, 363 (Fla. 4th DCA 1997) (“pretrial dispositions are ‘especially appropriate’ because of the chilling effect these cases have on freedom of speech”) (quoting Karp v. Miami Herald Publ’g Co. , 359 So. 2d 580, 581 (Fla. 3d DCA 1978)).

56 Cronley v. Pensacola News-Journal, Inc., 561 So. 2d 402, 405 (Fla. 1st DCA 1990).

Samuel Morley is general counsel at the Florida Press Association in Tallahassee. He acknowledges Carol LoCicero and Mark Caramanica with the Thomas LoCicero firm in Tampa, and Thomas Julin, a shareholder at the Gunster Firm in Miami, for their substantial and valuable input, insight, and editorial assistance in writing this article. Statements herein reflect the author’s personal views and opinions and not necessarily the views of FPA, its members, or those providing editorial input or their clients.