Protecting Public Expression

Washington’s anti-SLAPP statute analyzed in recent Court of Appeals decisions

by Jessica L. Goldman

Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws are of recent vintage and are intended to protect important public speech from costly, nonmeritorious lawsuits used to silence such speech. Thirty-three states and Washington, D.C., have anti-SLAPP laws.  Largely intended for use by journalists, the anti-SLAPP process has been employed by a much broader group of defendants. This article discusses Washington state’s initial, constitutionally flawed effort to protect public speech, its enactment in 2021 of the Uniform Public Expression Protection Act (UPEPA), process under the UPEPA, and several recent Washington appellate court decisions applying the UPEPA.

PURPOSE OF ANTI-SLAPP LAWS

The purpose of anti-SLAPP laws is to prevent litigants from suing and threatening suit as a means of stifling speech on issues of public concern. 

In the late 1980s, commentators began observing that the civil litigation system was increasingly being used in an illegitimate way: not to seek redress or relief for harm or to vindicate one’s legal rights, but rather to silence or intimidate citizens by subjecting them to costly and lengthy litigation. These kinds of abusive lawsuits are particularly troublesome when defendants find themselves targeted for exercising their constitutional rights to publish and speak freely, petition the government, and associate with others. Commentators dubbed these kinds of civil actions “Strategic Lawsuits Against Public Participation,” or SLAPPs.

SLAPPs defy simple definition. They can be brought by and against individuals, corporate entities, or government officials across all points of the political or social spectrum. They can address a wide variety of issues—from zoning, to the environment, to politics, to education. They are often cloaked as otherwise standard claims of defamation, civil conspiracy, tortious interference, nuisance, and invasion of privacy, just to name a few. But for all the ways in which SLAPPs may clothe themselves, their unifying features make them a dangerous force: Their purpose is to ensnare their targets in costly litigation that chills society from engaging in constitutionally protected activity.

Unif. Pub. Expression Prot. Act prefatory note intro., 13 pt. 2 U.L.A. 30, 31-32 (2022).

While the courthouse doors may remain open in the first instance to nonmeritorious lawsuits, the anti-SLAPP procedures allow a defendant to bring the matter to resolution through an early motion before much (if any) discovery is conducted. 

WASHINGTON’S 2010 ANTI-SLAPP STATUTE

Washington first took a stab at protecting public speech by way of an anti-SLAPP statute in 2010. The law, which was codified at former RCW 4.24.525, sought to protect speech through several mechanisms to ensure speedy adjudication. It presumptively halted discovery, created a special motion to strike the claim that stayed all other aspects of the case, awarded attorney fees and a $10,000 assessment to the prevailing party on the motion to strike, and provided an expedited appeal. 

The motion to strike was unique and provided a process separate from the Civil Rules. In adjudicating the motion, the trial court was to determine whether the claim was based on an action involving public participation and petition. If so, the court then decided whether the plaintiff could prove by clear and convincing evidence a probability of prevailing on the claim. If the plaintiff could not meet that burden, the trial court was to dismiss the lawsuit and award fees to the defendant. The Washington Supreme Court struck down this statute as violating the right to a jury trial under article I, § 21 of the Washington Constitution because it permitted judges to determine the facts in nonfrivolous lawsuits without a jury trial. Davis v. Cox, 183 Wn.2d 269, 351 P.3d 862 (2015). 

To avoid this constitutional infirmity, the Uniform Law Commission adopted the Uniform Public Expression Protection Act (UPEPA), which tracks the existing standards for pretrial dismissal of claims under the civil rules. It allows a defendant to bring an early summary judgment motion before conducting lengthy and expensive discovery. However, it does not allow dismissal of a claim that otherwise would have survived summary judgment. 

WASHINGTON’S 2021 ENACTMENT OF THE Uniform Public Expression Protection Act (UPEPA)

In 2021, the Washington Legislature was the first in the nation to enact the UPEPA. Since then, Hawaii, Kentucky, Maine, New Jersey, Oregon, and Utah have enacted versions of the uniform law. It has been introduced in nine other states where final votes have not yet occurred. In applying and construing this uniform act, courts are to consider “the need to promote uniformity of the law with respect to its subject matter among states that enact it.” RCW 4.105.902. 

The  process under the UPEPA “is essentially an expedited summary judgment motion.” Jha v. Khan, 24 Wn. App. 2d 377, 399, 520 P.3d 470 (2022) (quotation marks & citation omitted), review denied, 1 Wn.3d 1014 (2023). The Act creates a special procedure to quickly resolve cases that target the “[e]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern.” RCW 4.105.010(2)(c). Whether speech is a matter of public concern is a question of law for the court. Jha, 24 Wn. App. 2d at 389. This covers a broad swath of speech. “[S]peech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community.” Id. (quotation marks & citation omitted). For example, The Spokesman-Review’s publication of a story regarding the firing of a sergeant from the Spokane County Sheriff’s Department was held to be of public concern under the UPEPA. Thurman v. Cowles Company, 29 Wn. App. 2d 230, 243, 541 P.3d 403, review granted, 3 Wn.2d 1001 (2024).

The statute allows the parties to bring a special motion for expedited relief “[n]ot later than sixty days after a party is served with a complaint, cross-claim, counterclaim, third-party claim, or other pleading that asserts a cause of action[.]” RCW 4.105.020(2). An amended pleading re-triggers the 60-day period. Thurman, 29 Wn. App. 2d at 241-42.

Before filing the special motion, the moving party must provide the responding party at least 14 days’ prior written notice. During that 14-day window, the responding party may withdraw or amend the pleading pursuant to the court rules but is otherwise stayed from prosecuting the lawsuit. RCW 4.105.020(1). Failure to provide this notice deprives the moving party of the right to recover attorney fees but the moving party may still proceed with filing the special motion. Id. 

Upon the filing of this motion, all other proceedings, including pending discovery and other motions, are stayed. RCW 4.105.030(1)(a). The stay remains in effect until the special motion is fully adjudicated. RCW 4.105.030(2). The court may lift the stay upon a showing of good cause only to hear a motion unrelated to the UPEPA motion, RCW 4.105.030(7)(a), or a preliminary injunction motion “to protect against an imminent threat to public health or safety.” RCW 4.105.030(7)(b). “[A] motion that does not fall under either of these two categories (and is not a motion for an award of costs, attorney fees, or expenses under RCW 4.105.090) cannot be entertained while the UPEPA dismissal motion remains pending.” Jha, 24 Wn. App. 2d at 405 (footnote omitted). Hence, the trial court lacks authority to consider a motion for leave to file an amended complaint once the stay is in effect. Id.  

The record for the special motion is limited to “the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment under superior court civil rule 56.” RCW 4.105.050. The court must dismiss the claim if three conditions are met: (1) the defendant establishes that the UPEPA applies to the speech at issue, (2) the plaintiff fails to establish that the UPEPA does not apply, and (3) the plaintiff fails to establish a prima facie case or the defendant satisfies CR 12(b)(6) or CR 56. RCW 4.105.060(1)(a)-(c). “Under the UPEPA, provable defamation claims survive the expedited dismissal process and are not dismissed unless and until a trier of fact finds that defamation has not been proved. However, claims against protected expression are covered by the UPEPA notwithstanding a plaintiff characterizing that expression as defamation.” Thurman, 29 Wn. App. 2d at 241.

RECENT WASHINGTON APPELLATE DECISIONS

In January, Division III of the Court of Appeals, in  Thurman v. Cowles Company, 29 Wn. App. 2d 230, 541 P.3d 403, review granted, 3 Wn.2d 1001 (2024), struck down or restricted two provisions in the UPEPA. First, the court agreed with the argument that “the narrow discovery envisioned in the UPEPA is inconsistent with the broad discovery permitted by CR 26, and the civil rules must be given precedence.” Id. at 246. So, “[t]rial courts, when asked to lift a stay under” the UPEPA “must adhere to the dictates of CR 26(c), which permits trial courts to restrict discovery when ‘justice [is] require[d] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’” Id. However, “[i]n making its determination of what justice requires, the trial court should take judicial notice that the legislature, by enacting the UPEPA, has set forth the public policy of the State of Washington.” Id. The scope of discovery is left to the trial court pursuant to the Civil Rules.

Second, the Thurman court ruled that the UPEPA’s provision allowing an appeal as a matter of right from an order denying a motion to dismiss conflicts with CR 54(b) and RAP 2.2(b). Under these rules, an order that does not dispose of all claims is interlocutory and is subject to immediate appellate review only under the rules for discretionary review. “In this respect, RCW 4.105.080 is inconsistent” with the court rules “and cannot be given effect.” Thurman,  29 Wn. App. 2d at 246.

While anti-SLAPP cases typically involve defamation claims, the statute provides broader coverage so long as speech on issues of public interest is at issue. In Jha v. Khan, 24 Wn. App. 2d 377, 520 P.3d 470 (2022), Division I of the Court of Appeals reversed the trial court and dismissed a claim for false light invasion of privacy.  The claim had been filed by a property developer against a political candidate based on unflattering statements the defendant made about the plaintiff during the course of the defendant’s political campaign. In an unpublished case decided in January, Division I reversed the trial court and dismissed a claim for tortious interference pursuant to the UPEPA. Dimension Townhouses, LLC v. Leganieds, LLC, No. 84969-7-I, 2024 WL 226768 (Wash. Ct. App. Jan. 22, 2024) (unpublished). The claim arose in a land use case based on the defendant’s communications with the City of Burien. Id. at *4. In Thurman, the court dismissed a Consumer Protection Act claim under the UPEPA. 29 Wn. App. 2d at 242.

UPDATE

On June 5, as this issue of Bar News was going to press, the Washington Supreme Court granted review in Thurman v. Cowles Company, 29 Wn. App. 2d 230, 541 P.3d 403, review granted, 3 Wn.2d 1001 (2024). We will have to await that court’s analysis of the UPEPA and the Court of Appeals holdings striking down or restricting two of its provisions as inconsistent with Washington’s civil rules. 

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