The Supreme Court of the State of Washington has ruled that the state's strong anti-SLAPP statute is unconstitutional, violating the right to jury trial enshrined in Washington's state constitution.
Here's why, and what it means.
I've lawsplained anti-SLAPP statutes before. In brief, an anti-SLAPP statute is a tool to address frivolous and vexatious lawsuits aimed at protected speech. Generally, they work like this: the defendant files a motion showing that it is being sued because of speech covered by the statute. If defendant does so, then the burden shifts to the plaintiff to show that it has evidence supporting their claims. If the plaintiff succeeds, the suit survives; if the plaintiff fails, the court dismisses the case and (usually) awards defendant its attorney fees.
Anti-SLAPP statutes vary from state to state. Some apply only to narrow ranges of speech (like only speech involved in petitioning the government) and some cover very wide ranges of speech (like everything protected by the First Amendment). Their language varies on another point as well: how much evidence does the plaintiff have to provide when the burden shifts to them?
Most state statutes say the plaintiff has to show a "probability" of prevailing, or language to that effect. Almost universally, state courts have interpreted that to require the plaintiff only to produce sufficient evidence: that is, evidence that would be legally sufficient to support plaintiff's claim if the jury accepted it as true. In those states, the judge considering an anti-SLAPP motion doesn't weigh evidence — he or she doesn't consider whose evidence is more persuasive. Instead, the judge treats it rather like a motion for summary judgment: has the plaintiff offered evidence that if believed satisfies all of the elements of the cause of action?
Washington's anti-SLAPP statute is a little different. If the defendant carries its initial burden of showing that the lawsuit targets speech covered by the statute, it requires the plaintiff "to establish by clear and convincing evidence a probability of prevailing on the claim." That plain language seems to require the plaintiff to show more than enough evidence, and requires the judge to weigh the evidence.
The case at issue arose from a dispute at a Washington grocery called the Olympia Food Cooperative. The Cooperative's board of directors adopted a boycott of goods from Israel, and members of the cooperative sued claiming that the board exceeded its power. This is not mean-spirited satire about Washington. The cooperative filed an anti-SLAPP motion, and won. The court dismissed the case and awarded defendants attorney fees and statutory penalties in excess of $220,000.
On appeal, the plaintiffs argued that Washington's anti-SLAPP statute violated many rights, including the right to trial by jury in civil cases under Article I, Section 21 of the Washington State Constitution. The Court of Appeal rejected the argument, but the Washington Supreme Court agreed to hear the matter.
Today the court ruled that the state's anti-SLAPP statute violated the state constitution's right to trial by jury in civil cases. The court didn't reach any of the plaintiffs' other asserted grounds.
The defendants tried to backpedal from the plain language of the statute — they argued that "establish by clear and convincing evidence a probability of prevailing on the claim" just meant offering sufficient evidence, as in a motion for summary judgment or in other states' anti-SLAPP statutes, and didn't require weighing of evidence. They argued, in effect, that whatever the language said, the statute should be read the way most other anti-SLAPP statutes have been read. The court rejected that. Washington looked at California's statute, followed it, but deliberately chose different language for the plaintiff's burden. The legislature must have meant for it to mean something, the court reasoned. In fact, it required the judge hearing the motion to weigh evidence.
Next, defendants argued that dismissing frivolous cases doesn't violate the constitutional right to a trial by jury. True, said the court. But this statute doesn't merely dismiss frivolous suits. That's what anti-SLAPP statutes do when they merely require the plaintiff to show sufficient evidence. By requiring the plaintiff to prove its case by "clear and convincing evidence," this statute requires the judge to take over the jury's function, assess credibility, weigh evidence, and decide not only if plaintiffs' claim is frivolous, but whether it should win on the merits. The court held that the statute made the trial court "invade the jury's province of resolving disputed facts." This, the court held, was sacrificing one set of rights (the right to jury trial) for another set of rights (the right to free speech.)
Plaintiffs win and get to proceed with their case, defendants lose and have to defend their case, and Washington's anti-SLAPP statute falls.
So what does this mean nationwide?
This points to the vulnerability of anti-SLAPP statutes that impose a burden on the plaintiff to do anything other than produce sufficient evidence. Though the court relied on the state constitutional right to a jury trial, it reviewed federal jury trial authority extensively and demonstrated that there may be nationwide problems with anti-SLAPP statutes that require a judge to weigh evidence and resolve disputed facts. Other anti-SLAPP statutes that require plaintiffs to do more than submit evidence sufficient to meet the elements will be struck down if other courts adopt this logic.
Fortunately, the fix is relatively simple — all state legislatures have to do is define the plaintiff's burden carefully so that it resembles the summary judgment burden — the burden to produce admissible evidence which, if believed, is enough to win. Practically speaking, that will continue to weed truly frivolous cases out.
Speaking as someone who hates censorious and vexatious lawsuits, it would be nice, on some level, if plaintiffs suing over speech had to prove that their evidence was not just sufficient but strong. But that requirement has always been vulnerable to attack.
This ruling will only impact the more aggressive anti-SLAPP statutes, not the most common ones.
Thanks to tipster David.
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