Anti-SLAPP Motion
An early motion letting a defendant strike claims that target protected speech or petitioning activity.
SLAPP stands for Strategic Lawsuit Against Public Participation - a suit filed less to win on the merits than to burden a defendant with legal costs for exercising speech or petitioning rights, such as criticizing a business, reporting misconduct, or filing a complaint with a government agency. Many states responded by enacting anti-SLAPP statutes that let a defendant file a special early motion to strike such claims. California's statute, Code of Civil Procedure section 425.16, is the most litigated and influential version, but dozens of states now have comparable laws with meaningfully different scopes and procedures.
The typical anti-SLAPP framework is a two-step burden-shifting test: the defendant first shows that the challenged claim arises from an act in furtherance of protected speech or petitioning activity, and if that showing is made, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits with admissible evidence - a higher bar than surviving a motion to dismiss. Discovery is typically stayed while the motion is pending, which is a large part of the statute's value, since it prevents the plaintiff from using expensive discovery as leverage before the claim's merit is even tested.
A successful anti-SLAPP motion usually carries mandatory attorney's fees for the prevailing defendant, and many states allow an immediate interlocutory appeal of a denied motion rather than waiting for final judgment, both of which raise the stakes of filing one. There is no federal anti-SLAPP statute, and federal courts sitting in diversity are split on whether a state's anti-SLAPP procedure, particularly its discovery stay and fee-shifting features, applies at all under the Erie doctrine, or whether it conflicts with the Federal Rules of Civil Procedure and must yield.
How it actually shows up
Defendants facing defamation, business-interference, or retaliation claims tied to public statements or government filings use anti-SLAPP motions to end weak cases early and shift fees onto the plaintiff, while plaintiffs' counsel assess anti-SLAPP exposure before filing any claim that touches speech or petitioning activity, since a losing motion can be far more expensive than an ordinary dismissal.
- What does SLAPP stand for and what is an anti-SLAPP motion?
- SLAPP stands for Strategic Lawsuit Against Public Participation - a suit aimed at punishing or deterring speech or petitioning activity rather than genuinely redressing harm. An anti-SLAPP motion is the special early motion, available under many state statutes, that lets a defendant strike such a claim quickly and typically recover attorney's fees if successful.
- Is there a federal anti-SLAPP statute?
- No. There is no federal anti-SLAPP law, and federal courts are split on whether a state anti-SLAPP statute's procedures apply when a case is in federal court under diversity jurisdiction. Some circuits allow it, others hold that the Federal Rules of Civil Procedure displace the state procedure, so the outcome can depend heavily on which circuit the case is in.
- What must a plaintiff show to defeat an anti-SLAPP motion?
- Once the defendant shows the claim arises from protected speech or petitioning activity, the plaintiff must show a probability of prevailing on the merits, supported by admissible evidence rather than just the allegations in the complaint. That is a meaningfully higher bar than what is required to survive an ordinary motion to dismiss.
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