Top 5 Questions about Anti-SLAPP Suits & Defamation

 

By: Ashley L. Vaughn, Partner at Dumas & Vaughn, LLC

At Dumas & Vaughn, we are often asked about anti-SLAPP suits and defamation claims in sexual assault cases.  Here are our answers to the top 5 questions about anti-SLAPP suits & defamation that we get:

 

1. What’s an Anti-SLAPP suit? 

There has been a lot of talk in the media, especially since the rise of #metoo, of “Anti-SLAPP” suits as a defense against defamation claims or retaliatory lawsuits.  At Dumas & Vaughn, the most common types of defamation claims we see are those filed (or threatened) by alleged abusers against their accusers, because the accused say the accusations are false or are just trying to prevent their victims from taking further action.  Notable examples are the cases involving Bill Cosby and Johnny Depp v. Amber Heard.  We’ve also seen Anti-SLAPP suits arise in the context of internet doxxing and trolling; false accusations of rape or sexual assault; and free speech cases involving hot button issues like LGPTQIA+ rights, abortion rights, transgender rights, and political controversies.

                          Ok…but what is an anti-SLAPP suit? 

While emotions tend to run hot in defamation cases, anti-SLAPP suits do not involve physical slapping.  “SLAPP” stands for “Strategic Lawsuits Against Public Participation.”  As of October 2022, 32 states–including Oregon–and the District of Columbia have anti-SLAPP statutes.  These laws are designed to protect against legal suits that chill free speech-protected conduct.  Anti-SLAPP statutes are intended to shield one of our country’s most fundamental rights—freedom of expression, found in the First Amendment to the United States Constitution.  While each state’s law is different, generally speaking, anti-SLAPP laws provide for the early dismissal of lawsuits aimed at protected speech-related conduct, like speaking out in public on an issue of public importance, participating in a criminal prosecution, petitioning the government, or filing a lawsuit.  In some states, like Oregon, if you file a successful anti-SLAPP motion and get the case dismissed, the other side must pay your reasonable attorney’s fees.  Anti-SLAPP laws can be a powerful tool against lawsuits aimed at silencing free speech.  However, only certain types of conduct qualify and in pretty limited circumstances.  Each case is different.  It is important to consult with a qualified attorney familiar with anti-SLAPP motions and defamation claims to discuss your legal options.

2.  Defamation, Libel, & Slander–oh my!  What’s the difference?

You’ve probably heard the terms “defamation,” “libel,” and “slander,” but might be unsure what the difference is between them.  You are not alone!  Under Oregon law, defamation is defined as a false statement communicated to another person that damages your reputation.  For example, if you own a restaurant, and a customer claims on the internet that there are roaches in your delicious food, causing you to lose customers, that could be defamation if it’s not true.  (If there are roaches in your food, that’s a different story.)

Libel and slander are two types of defamation.  Libel is defamation by writing; slander is defamation by verbal statements.  A Tweet would be libel; telling your friend a lie at the local pub would be slander.  Defamation can take many forms and has thrived in the internet age, when it is relatively easy to go “viral” by publishing untrue and hurtful things about someone on the internet.

It is important to recognize that true statements made about someone are not defamation.  Additionally, you generally have to prove that you have been harmed by the lies.  But in some situations, like when someone accuses another person of rape, proof of harm is not required–it is assumed.

3.  What do I need to know about filing an anti-SLAPP suit?

Anti-SLAPP motions can be powerful tools, but they are only successful under very specific circumstances.  If you have been sued for defamation or any other legal claim as the result of speaking out or engaging in free speech-related conduct, you should consult with a qualified attorney about whether you can use an anti-SLAPP motion.  The analysis is fact-specific and requires an attorney familiar with anti-SLAPP law to make that assessment.  Additionally, your jurisdiction’s anti-SLAPP law, like Oregon’s, may have tight timelines, requiring you to act within a certain amount of time to protect your rights.  It is important when you’ve been served with a lawsuit to consult with an attorney as quickly as possible.  In Oregon, an anti-SLAPP motion must generally be filed within 60 days after service of the complaint, absent special circumstances.  When interviewing attorneys, you should ask whether they have experience litigating anti-SLAPP motions under your state’s law.

4.  If what I’m saying is true, I don’t have anything to worry about…right?

Although truth is the ultimate defense to defamation, “ultimate” is both literally and figuratively true here.  Even if what you have said is true, and you may ultimately prevail in a lawsuit, people file frivolous lawsuits every day.  If you are saying things that the other person perceives as hurtful, damaging, or threatening, they might file a lawsuit or threaten to file a lawsuit against you, just to shut you up or scare you.  While the law provides tools to try to get rid of these lawsuits early, you may still have to go through the time, stress, and expense of hiring an attorney to defend you and set the record straight, which can sometimes take a long time.  That’s one reason you can get attorney’s fees if you file a successful anti-SLAPP motion.

5. If I speak out about my abuser, can I be sued for defamation?

We get this question a lot.  We have represented hundreds of survivors, and often our clients want to know whether they can speak about their abuse publicly, through a blog post, advocacy campaign, book, or the like.  Being able to speak freely and publicly about their abuse is a form of healing.  It also helps to hold abusers accountable, provides strength to others, and helps protect against the abuse recurring.  Speaking out about abuse is the cornerstone of the global #metoo phenomenon, that has forever changed the way that society thinks about, talks about, and acts about sexual assault and harassment.  So, what could be the problem?

Unfortunately, the harsh reality is that speaking out about your abuse can sometimes open you up to a lawsuit by your abuser, even if the lawsuit is frivolous.  Filing frivolous lawsuits can be another form of harassment and abuse by the abuser.  It is a way to try to exert power and control.

That does not mean you should not speak up.  If you want to hold your abuser accountable, but are worried about the consequences, we can help.  We can talk you through your options candidly and compassionately, focusing on the best option for you and your personal situation.  Your safety and comfort level are the most important considerations, and there are protections under the law to help you take action safely and to seek recovery when you are retaliated against by your abuser.

More questions about anti-SLAPP and defamation?  Contact us.

If you have questions about defamation, anti-SLAPP motions, or related claims, please contact us to schedule a free, confidential consultation.  We are skilled at investigating such claims and handling cases discreetly and with sensitivity.  As a boutique law firm in the Pacific NW, we maintain a manageable caseload so that we can provide personalized, detailed attention to each case and client.

The information in this post is provided for informational purposes only and is not legal advice.  You should not make a decision whether or not to contact a qualified attorney based upon the information in this post.  No attorney-client relationship is formed from this post nor should any such relationship be implied.  If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.