The ACORN Suit and Maryland's Narrow Anti-SLAPP Law

Law

In my post about ACORN's suit against Breitbart yesterday, my quick-and-dirty approach allowed me to misread an out-of-date secondary source to say, incorrectly, that Maryland does not have an anti-SLAPP statute. Karl, who writes at Patterico's Pontifications, kindly pointed out that I was wrong.

Thanks to Karl, I took a look at Maryland Courts and Judicial Code section 5-807, which sets forth Maryland's anti-SLAPP statute. A few observations:

1. The law took effect in 2004. As far as I could tell from a quick Westlaw search, there have been no published cases interpreting it. There's a case noting that it did not apply to a lawsuit in which Arizona law controlled, but no analysis of the meaning of its terms.

2. The law, as drafted, appears substantially watered down as compared to other anti-SLAPP statutes, and seems calculated to make it less of a barrier to plaintiffs and less useful as a defense for defendants. I note that the statute defines anti-SLAPP suits as ones that are brought "in bad faith" and are "intended to inhibit the exercise of rights under the First Amendment." That's a subjective inquiry into the intent of the plaintiffs. The plaintiffs can very easily claim they have no such censorious intent, but are only vindicating their rights and reputation, etc. By contrast, good anti-SLAPP statutes (like California's) avoid subjective inquiries into the intent of the plaintiff and rely on objective analysis of whether the complaint describes protected conduct.

3. As drafted, Maryland's anti-SLAPP statute only seems to address a relatively narrow category of protected speech. Take the section defining a SLAPP:

Brought in bad faith against a party who has communicated with a federal, State, or local government body or the public at large to report on, comment on, rule on, challenge, oppose, or in any other way exercise rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body;

That definition seems to limit SLAPP suits to comments about "matters within the authority of a government body." What does not mean? It's not clear. Read one way, it could mean anything that any government body might address. Read another way, it might mean a "matter" in the sense of a pending proceeding before a government body. That would fit the classic narrow concept of a SLAPP as directed at squelching public comment to the government about proposed development by big companies. At any rate, it is not completely clear that Maryland courts would not interpret this narrowly to require the comment to be about some matter already pending before a government entity.

Moreover, note that the definition only applies to speech protected by the federal and state constitutions. That excludes speech protected by statutes — for instance, by the litigation privilege, or other state law privileges, which are frequent subjects of anti-SLAPP motions in other states.

This narrow definition is repeated later in the statute:

A defendant in a SLAPP suit is not civilly liable for communicating with a federal, State, or local government body or the public at large, if the defendant, without constitutional malice, reports on, comments on, rules on, challenges, opposes, or in any other way exercises rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body.

Compare and contrast that with the broader definition in California's statute:

e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;
(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

4. The procedure for filing an anti-SLAPP motion under the Maryland statute is not at all clear. Here's what the statute says:

(d) A defendant in an alleged SLAPP suit may move to:
(1) Dismiss the alleged SLAPP suit, in which case the court shall hold a hearing on the motion to dismiss as soon as practicable; or
(2) Stay all court proceedings until the matter about which the defendant communicated to the government body or the public at large is resolved.

[Note that (d)(2) suggests that the narrow interpretation of "matter", discussed above, is the correct one.]

The statute says that the court can dismiss the SLAPP suit. But it doesn't say what the procedure or standard is. Who has what burden, exactly? Can the court consider extrinsic evidence, or is it bound by the allegations in the statute? What happens to the suit while the motion is pending?

By contrast, the California statute and subsequent cases interpreting it make the procedure clear: the filing of the motion stays all discovery and other activity in the case, the defendant filing the motion has the burden of demonstrating (using extrinsic evidence if necessary) that the complaint attacks protected speech, then the burden shifts to the plaintiff to demonstrate (using extrinsic evidence if necessary) a likelihood of prevailing on the action in light of the relevant free speech defenses.

It's not clear to me at all what the procedure is supposed to be in Maryland. That makes the statute a much less useful tool.

5. Finally, and very significantly, the statute does not grant attorney fees to a prevailing defendant, like the California statute and other statutes. That means it really isn't a deterrent at all, and offers little protection.

In short, Maryland's anti-SLAPP statute sucks. It seems likely that it was rendered substantially useless by the pro-plaintiff-attorney legislative forces that opposed it. It might provide a procedural vehicle for Breitbart et al. to raise First Amendment issues, but it isn't the killshot that it could be in some states. Too bad. I really love California's anti-SLAPP statute. Winning one, and watching your opponent realize he will be paying your fees, is one of the great pleasures of First Amendment law.

Last 5 posts by Ken White

9 Comments

6 Comments

  1. Mike  •  Sep 24, 2009 @2:34 pm

    Don't you love it when you give a thoughtful analysis of an interesting legal issue…And get ZERO comments!?

  2. Ken  •  Sep 24, 2009 @2:41 pm

    I'm used to it. I labor for hours over posts that sink quietly into obscurity, and barf up a thirty-second one-off that generates years of hits.

  3. Jdog  •  Sep 24, 2009 @2:51 pm

    Hey, I thought it was interesting. I just didn't have anything of importance or potential amusement to add, so I — uncharacteristcally — went on my merry.

  4. Mike  •  Sep 24, 2009 @3:38 pm

    I still get 100 hits a week for Kenny Glenn, cat abuser. And another 100 or so for David Motari, the dog-killing Marine.

    Both were bullshit "stories" that I broke by reading a site populated by 4Chan Btards. Both led to record days of traffic and comments.

  5. Whitehall  •  Sep 24, 2009 @6:09 pm

    Seems to me that no Maryland judge would want anything to do with ACORN's suit. Having ACORN prevail risks the condemnation of the country's citizenry.

    Why risk becoming the next Judge Ito?

    The safest course is to kick it up to the federal level if at all possible.

  6. Mike  •  Sep 24, 2009 @8:19 pm

    As a hilarious footnote: It was the Maryland Chamber of Commerce that kept trying to block an anti-SLAPP law; and they are the ones who neutered the one that passed.

    I thought, according to the Chamber of Commerce, that were too many frivolous lawsuits!

    Well then…Let's dismiss the frivolous ones early one, shall we?

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