Anti-SLAPP

Commonly known as Florida’s “Anti-SLAPP” statute (Strategic Lawsuits Against Public Participation), Florida Statute §768.295 was enacted to “protect the rights in Florida to exercise free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and 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.”

What Is a Strategic Lawsuit Against Public Participation (SLAPP)?

Cornell Law School defines a SLAPP lawsuit as one that is “brought by individuals and entities to dissuade their critics from continuing to produce negative publicity.” Often, the allegations in a SLAPP lawsuit are without merit, and/or prevailing in the lawsuit is not the intended goal. Instead, the goal is to silence or dissuade critics by forcing them to spend exorbitant amounts of time and money defending a lawsuit.

What Does the Florida Anti-SLAPP Statute Prohibit?

Section (3) of the Anti-SLAPP statute sets forth what types of lawsuits are covered and what conduct is prohibited, stating in pertinent part as follows:

“A person . . . in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity 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 various governmental entities of this state…”

Section (2)(a) of the statute defines “free speech in connection with public issues” as “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.”

What Rights Does a Defendant Have Under the Anti-SLAPP Statute?

When faced with a SLAPP lawsuit, a defendant has the right to “an expeditious resolution of a claim that the suit is in violation of this section.” Specifically, a defendant may file a motion to dismiss or move for summary judgment in favor of the defendant. The plaintiff must then file a response to any such motion.  The Court must set a hearing as soon as practicable on the matter to be held “at the earliest possible time.” after the plaintiff files a response.

The Shifting Burden in an Anti-SLAPP Lawsuit

As in all civil litigation, the burden of proof initially lies with the plaintiff to prove the allegations set forth in the Complaint. When a defendant moves to dismiss a lawsuit or moves for summary judgment on the basis that the Complaint violates the Anti-SLAPP statute, the defendant must set forth a prima facia case for application of the Anti-SLAPP statute. If the defendant meets that burden, the burden shifts back to the plaintiff who must demonstrate that the allegations in the Complaint are not primarily based on First Amendment rights in connection with a public issue and that the allegations have merit.

Moreover, Florida courts have reinforced the shifting burden in an Anti-SLAPP lawsuit, making it clear that a plaintiff cannot avoid dismissal by using intentionally vague language in a Complaint or Counter-Complaint. “[A] motion to dismiss based on the Anti-SLAPP statute requires the trial court to do more than accept as true the factual allegations in the four corners of the complaint and draw all reasonable inferences therefrom in favor of the claimant.” Gundel v. AV Homes, Inc., 264 So. 3d 304,314 (Fla. 2d DCA 2019).

A defendant who successfully proves a violation of the Anti-SLAPP statute by a governmental entity may be awarded actual damages. However, the court shall award the prevailing party reasonable attorney fees and costs incurred in connection with a claim that an action was filed in violation of this section.

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