The Gray Area Of Anti-SLAPP

January 27, 2015

In 2007, the Illinois General Assembly enacted the Citizen Participation Act.  The Act was designed for the quick dismissal of “Strategic Lawsuits Against Public Participation,” or SLAPPs.  The General Assembly found that firms, developers, and other entities were using the legal system to attack and bankrupt opponents that took public action against them.  A heavily cited example in support of this Act stems from Richmond, Illinois, where a local developer brought three lawsuits against two men running for trustee positions.  The developer, who disagreed with the candidate’s politics, filed three lawsuits alleging defamation.  While each suit was eventually dismissed, the financial impact from the cost to defend the lawsuit left both candidates on the brink of financial ruin.  In response, the Anti-SLAPP law was meant to allow courts to dismiss cases immediately and to award the defendants their attorney fees and costs.  However, courts struggled to apply the Act, which resulted in inconsistent rulings and uncertainty for litigants.  While the Illinois Supreme Court attempted to resolve some of the issues in 2012, many questions still remain regarding the cases actually fall under the SLAPP protections.

In enacting the Citizens Participation Act, the Illinois legislature had several specific goals. First, the Act was to balance a plaintiff’s right to sue with a defendant’s constitutional rights to petition, speak freely, and participate in government.  Second, the Act sought to establish an efficient process to identify and adjudicate SLAPP lawsuits.  Finally, the Act sought to lessen the financial blow of SLAPP lawsuits by permitting defendants to recover their attorneys’ fees and costs.

In Illinois, the Act has been primarily applied to defamation cases.  A common scenario involves a public employee being criticized in the news by a citizen.  In response, the employee files a defamation lawsuit to effectively silence the citizen.  The Act was intended to stymie such abuses.  However, there are still so few cases interpreting these issues that the scope of what is and is not a SLAPP has not yet been fully fleshed out. Many other possible SLAPP torts (such as malicious prosecution or tortious interference) have not been interpreted by Illinois appellate courts at all. This gap of interpretation means that the Act might fall short in its goal of protecting citizens – or might become a tool for abuse by defendants.

For example, a defendant can effectively halt a case for 90 days simply by claiming he or she was engaged in a “protected act.” Making that claim alone forces a plaintiff to meet a burden of proof – in other words, the plaintiff must make a showing that the plaintiff’s actions were outside the context of the Act. If the plaintiff can’t, a court can dismiss the lawsuit and may force the plaintiff to pay the defendant’s attorneys’ fees and costs. While certainly a potential deterrent to abusive lawsuits, it may also be used to deter and avoid legitimate complaints.

As the Act remains relatively new, it also remains unclear how it will continue to be used in Illinois. For the time being, Illinois’s Act continues to function without a restrictive framework established by the legislature. Virtually any private citizen in Illinois can move for dismissal under the Act, under the right circumstances. As a result, it remains unforeseen whether the Act will meets its goals or simply chill wronged plaintiffs from bringing just lawsuits. Only further guidance from the courts will determine whether the Act, originally envisioned as a shield to defendants, will become their sword.