The Burgeoning Use Of 'Strong' Anti-SLAPP Statutes In Employment Law

The acronym SLAPP stands for "Strategic Lawsuit Against Public Participation." A SLAPP lawsuit seeks to chill, dissuade, or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The majority of states (at least 28) have adopted or recognized "anti-SLAPP" statutes enacted for the purpose of safeguarding individuals' First Amendment rights. The "strength" of an anti-SLAPP statute is directly correlated with the text of the statute itself. Strong statutes are legislatively drafted in ways that invite courts to liberally construe and apply the statute broadly in various contexts.

One of the strongest anti-SLAPP statutes is the Texas Citizens Participation Act (TCPA) (codified in Chapter 27 of the Texas Civil Practice and Remedies Code). The TCPA explicitly instructs courts to construe its provisions liberally "to effectuate its purpose and intent fully." Subject to a narrow commercial-speech exemption (see, for example, Castleman v. Internet Money Ltd.), the TCPA "protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." The TCPA provides a two-step, burden-shifting mechanism for dismissing a meritless lawsuit when the lawsuit is based on, or relates to, the exercise of a constitutional right about a matter of public concern.

Similar to the TCPA, the California anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16) likewise mandates that the statute "shall be broadly construed." Under California's anti-SLAPP law, the cause of action must arise from the protected activity, and a claim arises from protected activity when that activity underlies or forms the basis for the claim. But not all statutes are created equal. In contrast to the language contained in the Texas and California anti-SLAPP statutes, states such as New York have narrowly worded anti-SLAPP statutes that naturally limit their scope and applicability.

The Rise of Strong Anti-SLAPP Law

The stark political divide, together with the prominence of social media, has presented parties and courts alike with ample opportunities to rely upon strong anti-SLAPP statutes in cases involving defamation. Anti-SLAPP law recently received nationwide attention in December 2018 when a California federal district court dismissed the defamation lawsuit filed by Stormy Daniels against the President of the United States. Using choice of law principles, the Central District of...