SLAPPing Down Meritless Claims: Arizona’s Anti-SLAPP Expansion, Questionable Constitutionality, and the Continued Need for Judicial Interpretation

By Sophie Adams. 

Imagine that a large corporation sues a filmmaker for making a documentary which makes the corporation look bad. The film was vague and not defamatory by any standard, but the corporation did not want the film circulating in the public sphere. Even though it knew it would fail, the corporation sued the filmmaker for defamation to intimidate and silence them. 

Now imagine environmental activists who regularly petition the government and local businesses against the construction of a gas pipeline. The company pushing for the pipeline sues the group on several far-fetched bases, such as conspiracy in an international criminal enterprise. The company brought these claims not because they had suffered any injury or thought they would succeed, but because they wanted to scare the group into silence and bog them down with costly litigation. 

These are classic examples of “strategic lawsuits against public participation,” known commonly as SLAPPs. George W. Pring and Penelope Canan coined the term “SLAPP” in 1988 to describe this type of claim, where the plaintiff files a lawsuit not to win but to delay, harass, retaliate, or intimidate. Today, 38 states, along with Washington D.C. and Guam, have passed anti-SLAPP laws to combat this issue. Such laws are designed to quickly weed out these meritless claims and save those who are wrongfully sued the time and expenses of litigation. Several states passed the Uniform Public Expression Protection Act (UPEPA), a uniform act drafted by the Uniform Law Commission, which is a group of lawyers who propose uniform legislation in necessary areas. Still, anti-SLAPP laws vary greatly across the country. Some laws, such as California’s, cover most any speech made on issues of public concern, while other laws, such as New Mexico’s, are more narrow.

History of Arizona’s Anti-SLAPP Law

Arizona first passed an anti-SLAPP law in 2006 and codified it at A.R.S. § 12-752. It provided defendants an expedited dismissal process for suits arising from their exercise of the right to petition. The law’s scope was fairly narrow, protecting only speech which directly petitioned the government in some capacity. A respondent could defeat this special motion to dismiss if they demonstrated that the movant’s speech lacked reasonable support in either law or fact, and that it caused compensable injury. Like many other anti-SLAPP laws, the Arizona law stayed discovery and mandated the award of attorney’s fees to the prevailing party. In the legislative findings section that accompanied the law, lawmakers asserted that people were using civil actions to “significantly chill” public participation in government, and that the legislature intended the law to provide the “utmost protection” to free speech while preventing abuse of the judicial process. Again, this law only applied to civil suits involving the lawful exercise of the right to petition. 

The 2022 Amendments

In February 2022, the Arizona House of Representatives proposed significant amendments to the law. The amendments were extensive, and Representatives continued to edit the bill as it made its way through the House. In introducing the amendments, Representative Ben Toma stated that the amendments were intended to “beef up” existing laws and extend applicability to suits filed by state actors. The Senate then amended the bill to clarify the movant’s burden and implement a clearer burden-shifting structure. Although it underwent many changes, it passed both chambers with little debate or question, and the statute was officially amended taking its current shape. 

The new Arizona anti-SLAPP law is unique in many ways. The law now covers nearly all lawful forms of speech, press, petition, and assembly. It also defines “legal action” within the scope of the statute as including both civil claims and criminal prosecutions. This is groundbreaking: no other anti-SLAPP law in the country allows criminal defendants to use an anti-SLAPP motion to defeat their criminal charges. 

The new law requires movants to establish “prima facie proof” that the charges filed against them were “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.” Some states, such as Kansas and Oregon, require a movant to make a prima facie showing that the claim was based on protected conduct. However, no other state requires such prima facie proof that the suit was “substantially motivated” by anything; in fact, some states, most prominently California, have rejected outright the idea that a movant need make any showing as to the plaintiff’s motivation at all. The amendment made other changes as well, including clarifying the respondent’s burden in defeating the motion and the availability of attorney’s fees. 

Current Landscape of the Anti-SLAPP Defense

The amended anti-SLAPP law has only been cited in a handful of cases. Most recently, this August, the Arizona Court of Appeals addressed when a court has appellate jurisdiction over the denial of an anti-SLAPP motion and how a respondent demonstrates their lawsuit is “justified in existing law.” 

But courts have shed hardly any light on the movant’s burden in making an anti-SLAPP motion. What constitutes prima facie proof, and when has the movant successfully shown the suit was substantially motivated by an improper purpose? The U.S. District Court for the District of Arizona recently touched on these questions briefly, holding that merely asserting speech is constitutionally protected does not alone satisfy this burden. Other cases that cite the law mention it only briefly

Additionally, Arizona courts have yet to define what constitutes proof of “substantial motivation” at all. This language prompted criticism from the Institute for Free Speech, as it asserted the language “limits the effectiveness of the law.” But this language came in the context of otherwise expansive edits. It is unclear why the legislature added this language while simultaneously broadening the scope and availability of the defense. Since guidance and scholarship on the law remains sparse, it will be up to Arizona courts to pave the way, hopefully sooner rather than later. 

Recent Prosecutorial Challenge to Anti-SLAPP in Arizona Criminal Cases

Arizona appellate courts have yet to interpret the new statute in a criminal case. Notably, the Maricopa County Attorney’s Office filed a petition for special action on October 17, arguing that the law is unconstitutional. Prosecutors filed this petition after a justice court found the defendants in the case met step one of the anti-SLAPP analysis, which requires the movant to show “prima facie proof” of improper motivation for the charges. The prosecutors make four key points. They argue primarily that the criminal component of the law allows judges to interfere with prosecutors’ charging discretion, and thus violates the separation of powers doctrine under Article 3 of the Arizona State Constitution. They then argue that the law violates Arizona’s Victims’ Bill of Rights, because it allows courts to dismiss cases involving victims without considering those victims’ rights. Next, they argue that the law conflicts with Arizona’s Rules of Criminal Procedure, which must prevail if in conflict with a procedural statute. Finally, they argue that the law is vague and overbroad under state and federal principles of statutory interpretation. 

It is unclear why prosecutors raised these issues at this point in the case, having made no prior assertions of unconstitutionality. Their argument is certainly expansive, making a variety of points and blending both federal and state law. Without case law interpreting or even applying the anti-SLAPP statute in criminal cases, it is unclear how Arizona courts will view the law. Note, however, that this petition has only been filed in Maricopa County Superior Court, so regardless of the court’s conclusion, the issue may well be reexamined on further appeal. As such, it is possible litigants will be waiting a substantial amount of time before courts offer any guidance on the law. 

Using the Anti-SLAPP Defense Today

Clearly, the bounds of Arizona’s expanded anti-SLAPP law have not been appropriately tested. It seems the Arizona legislature intended the law to provide expansive First Amendment protection: by covering a broad swath of expressive conduct and working against both civil and criminal suits, the law has the potential to be a powerful tool in protecting speech. Civil and criminal defendants should continue to consider the anti-SLAPP defense to protect their First Amendment rights. But until Arizona courts further interpret the statute, and decide its constitutionality in criminal settings, their chances of success are unclear. Anyone considering an anti-SLAPP motion should remain on the lookout for developments.