Washington State Says Its Anti-SLAPP Law Is Unconstitutional

For years, we've talked about the importance of anti-SLAPP laws that help quickly toss out lawsuits whose sole purpose are to silence critics. A key point that we've made is the need for a federal anti-SLAPP law, because until then, we're at the mercy of a patchwork of state laws. Some states have no anti-SLAPP law. Some have weak ones. A few have strong ones. In just the past month alone we've discussed Florida strengthening its anti-SLAPP law, and Nevada's attempt to weaken its anti-SLAPP law. Meanwhile, a court in DC issued a ruling that greatly limited the effectiveness of DC's anti-SLAPP law.

And now... Washington State has just ruled its anti-SLAPP law unconstitutional. The full ruling is worth reading, but if you want to dive deep, Ken "Popehat" White has excellent "lawsplainer" as well. In short, this particular anti-SLAPP had a feature unlike most others -- and that was the problem. Basically, it requires the plaintiff "to establish by clear and convincing evidence a probability of prevailing on the claim." Most states, on the other hand, use lesser standards, involving "sufficient" evidence or something similar. The problem, as the Washington court ruling notes, is that by making the standard "clear and convincing" it requires the judge to weigh the evidence. And that's a problem, the court decided, because then the judge is effectively acting as a jury -- thus depriving the plaintiff of a constitutionally guaranteed jury trial:

Thus, [the Washington anti-SLAPP law] creates a truncated adjudication of the merits of a plaintiffs claim, including nonfrivolous factual issues, without a trial. Such a procedure invades the jury's essential role of deciding debatable questions of fact. In this way, [the anti-SLAPP law] violates the right of trial by jury under article I, section 21 of the Washington Constitution.

In short: the court is saying that the anti-SLAPP would be okay if it were more like a summary judgment situation, wherein the judge didn't have to weigh any of the evidence on the merits. Once it gets to that stage, however, it's taking on the role of a jury. As Popehat notes, this might impact some of the stronger anti-SLAPP laws out there, but it's fixable, just by changing the standard. Unfortunately, though, that does lower the power of some anti-SLAPP laws:

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.

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