You may not have known that Florida has had an anti-SLAPP law on the books for the last decade. Probably because it was so narrow that it only applied to lawsuits filed by the government. However, this year the legislature substantially revised that law, and on July 1, 2015, a new Florida anti-SLAPP law went into effect.
New Florida Anti-SLAPP: What it’s all about
The term “SLAPP” stands for “strategic lawsuits against public participation.” It arose in the 1980s and originally pertained to lawsuits “involving communications made to influence a governmental action or outcome,” according to sources on Wikipedia. California was the first state to give the term a much broader definition. Other states have enacted similar laws, but each state is different.
In 2000, Florida enacted its old anti-SLAPP statute, section 768.295. Called the “Citizen Participation in Government Act,” this early anti-SLAPP law only pertained to lawsuits filed by government entities.
The recent revision to the new anti-SLAPP law broadened the scope of section 768.295 in part as follows (with additions underlined and deletions struck through):
It is the public policy of this state that a person or governmental entitygovernment entitiesnot engage in SLAPP suits because such actions are inconsistent with the right of personsindividualsto exercise such constitutional rights of free speech in connection with public issuesparticipate in the state’s institutions of government. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein describedby governmental entitieswill preserve this fundamental state policy, preserve the constitutional rights of persons in Floridacitizens, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.
STRATEGIC LAWSUIT—PUBLIC PARTICIPATION—FREEDOM OF SPEECH, 2015 Fla. Sess. Law Serv. Ch. 2015-70 (C.S.S.B. 1312) (WEST).
It also creates a new legal phrase, “Free speech in connection with public issues,” which it defines as:
[A]ny 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.
What’s is now an illegal SLAPP suit in Florida?
The new Florida anti-SLAPP law makes it illegal for any individual or entity to file or cause to be filed a lawsuit that is “without merit” for the primary reason that the person sued “has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before” the State, as protected by the First Amendment. (The earlier version of the statute required that the lawsuit be filed “solely” because of one of these reasons, but the new revision changed that word to “primarily.”)
Therefore, to prove the anti-SLAPP defense, a Defendant will have to show that:
- (1) The lawsuit was filed without merit;
- (2) The primary reason of the lawsuit was because:
- (a) The Defendant made a written or oral statement that is lawful and was made either:
- (i) Before a governmental entity in connection with an issue under governmental consideration or review, or
- (ii) 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; or
- (b) The Defendant exercised the constitutional right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state
- (a) The Defendant made a written or oral statement that is lawful and was made either:
The term ‘public issues’: not really that important
When reviewing the bill, the Senate Judiciary Committee found that “the disjunctive structure of the definition of ‘free speech in connection with public issues,'” caused the new law to “give additional protections to speech solely because the speech is made through designated forms of media,” regardless of whether the speech relates to a so-called “public issue.”
The committee advised: “If the Legislature 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.”
However, no such language was added. Therefore, it appears that the language is intended to be interpreted broadly to affect all lawful language, not only that involving “public issues,” whatever those may be. However, it will be up to the Courts to interpret the language accordingly.
Remedies when a SLAPP lawsuit is filed
The new statute allows an affected Defendant to move the Court for an order dismissing the SLAPP lawsuit or granting final judgment in the Defendant’s favor. The Defendant can also move for summary judgment to obtain the same result.
The court is required to set a hearing “as soon as practicable” after the Plaintiff responds to the Defendant’s motion.
After the hearing the court shall award the prevailing party reasonable attorney fees and costs incurred in connection with the issue. The fees are mandatory, rather than permissive (the word “shall” is used), and they go to the “prevailing party” – whoever wins. This prevailing party language should discourage the filing of meritless anti-SLAPP motions to dismiss.
Other anti-SLAPP laws in Florida
When examining the bill, the Florida Senate Judiciary Committee noted that other narrower statutes exist that prohibit SLAPP suits against a condominium unit owner or a parcel owner within a homeowners’ association without merit and solely because such owner has exercised the right to instruct their representatives or 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, Article I of the State Constitution. §§. 718.1224 and 720.304, Fla. Stat. respectively.
What’s in store for the future?
Unless you have a time-traveling blue police box to loan us, neither you nor I can predict the future. However, as with all laws, it is possible that this law may change or even be challenged in future years. For example, an anti-SLAPP law in Washington State was found unconstitutional because it violated the right to a jury pursuant to the Washington Constitution. Davis v. Cox, No. 90233–0 (Wash. May 28, 2015) (en banc). Additionally, some U.S. lawmakers have been trying to introduce a federal anti-SLAPP law, the “Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015” (“SPEAK FREE Act of 2015”) (H.R. 2304). Such a law, if enacted, could affect SLAPP lawsuits filed in federal courts.
Have you been SLAPPed?
If you believe a SLAPP lawsuit has been filed against you, feel free to call our law office at 407-965-5519 to schedule for a consultation of your legal matter. Attorneys at Cynthia Conlin, P.A. represent litigants in state and federal courts in Florida.
So, from what I understand, the new anti-SLAPP legislation is a lot broader than the original and fairer. Also, now the legislation refers to public issues, whatever they may be, as opposed to just issues pertaining to the government. In any case, I’m guessing that this is good news for free speech advocates.