WA Case Update: Anti-SLAPP Statute Ruled Unconstitutional

From the Desk of Kyle Riley: Washington’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute provides an early means of disposing of lawsuits that aim to stifle free speech. Washington is one of 28 states that has enacted an anti-SLAPP statute. The current version of Washington’s anti-SLAPP statute was modeled after California’s statute. Since its enactment, defendants have been taking advantage of the statute as a defense to claims relating to speech activities protected by the Constitution. Read on to see why the Washington Supreme Court held that the statute is unconstitutional.

Claims Pointer: Under RCW 4.24.525, the key provision of Washington’s anti-SLAPP statute (“the statute”), all underlying claims and discovery are stayed pending a ruling on a special motion to strike. The statute awards a prevailing party attorney fees and a $10,000 statutory fine. The Washington Supreme Court held that the statute violates the right to a jury trial provided by the Washington State Constitution. After examining the statute, the Washington Supreme Court determined that the statute is more restrictive than similar proceedings because it requires the adverse party to prove by clear and convincing evidence that it has a likelihood of prevailing on its claims. The Court held that the high standard of proof does not adequately protect a person’s right to a trial. This development is potentially harmful to defendants who are faced with frivolous lawsuits designed to penalize lawful expression.

Davis v. Cox, No. 90233-0, 2015 WL 3413375 (Wash. May 28, 2015)

The Olympia Food Cooperative is a nonprofit grocery store that engages in activities such as boycotts to affect public policy. The Cooperative had a written boycott policy, which required a consensus of the board before the Cooperative could engage in a boycott. A majority of the board decided, without unanimity, to boycott products from Israel in order to protest what they perceived were...

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