ARKANSAS ANTI-SLAPP LAWS: Strategic Lawsuits Against Public Participation
ARKANSAS ANTI-SLAPP LAW: Arkansas Code Sections 16-501 - 16-508
A strategic lawsuit against public participation (SLAPP) is a lawsuit intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
In the typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. SLAPPs bring about freedom of speech concerns due to their chilling effect and are often difficult to filter out and penalize because the plaintiffs attempt to obfuscate their intent to censor, intimidate, or silence their critics.
To protect freedom of speech some jurisdictions have passed anti-SLAPP laws (often called SLAPP-back laws). These laws often function by allowing a defendant to file a motion to strike and/or dismiss on the grounds that the case involves protected speech on a matter of public concern. The plaintiff then bears the burden of showing a probability that they will prevail. If the plaintiffs fail to meet their burden their claim is dismissed and the plaintiffs may be required to pay a penalty for bringing the case.
Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid, abusive suits, without denying a legitimate day in court to valid good faith claims. Anti-SLAPP laws are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs
SLAPPs take various forms. The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libel dates to the early 17th century and, unlike most English law, is reverse onus, meaning that once someone alleges a statement is libelous, the burden is on the defendant to prove that it is not. In England and Wales, the Defamation Act 2013 removed most of the uses of defamation as a SLAPP by requiring the proof of special damage. Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory.
A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favorable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.
Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants' costs even if this clearly costs more to the plaintiffs.
Several jurisdictions have passed anti-SLAPP laws, designed to quickly remove cases out of court. In many cases, the plaintiff is also required to pay a penalty for bringing the case, known as a SLAPP-back.
Arkansas Code Title 16, Chapter 63
Subchapter 5. Citizen Participation in Government Act
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16-63-501. Title. - This subchapter shall be known as and may be cited as the "Citizen Participation in Government Act".
- The General Assembly finds and declares that:
(1) It is in the public interest to encourage participation by the citizens of the state of Arkansas in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for a redress of grievances; (2) The valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process; (3) The threat of a civil action for damages in the form of a strategic lawsuit against political participation and the possibility of considerable legal costs can act as a deterrent to citizens who wish to report information to federal, state, or local agencies; and (4) Strategic lawsuits against political participation can effectively punish concerned citizens for exercising the constitutional right to speak and petition the government for redress of grievances. - As used in this subchapter:(1) "An act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Arkansas in connection with an issue of public interest or concern" includes, but is not limited to, any written or oral statement, writing, or petition made:(A) Before or to a legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments; or (B) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or other body authorized by state, regional, county, or municipal government; and(2)(A) "Privileged communication" means a communication made:
(i) In, to, or about an issue of public concern related to any legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments; (ii) In the proper discharge of an official duty; and (iii) By a fair and true report of any legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments or anything said in the course of the proceeding.(2)(B) "Privileged communication" also includes:(i) All expressions of opinion or criticisms in regard to any legislative, executive, or judicial proceeding, or other proceeding authorized by state, regional, county, or municipal governments; and (ii) All criticisms of the official acts of any and all public officers.(2)(C) "Privileged communication" does not include a statement or report made with knowledge that it was false or with reckless disregard of whether it was false. - Any person making a privileged communication or performing an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Arkansas in connection with an issue of public interest or concern shall be immune from civil liability, unless a statement or report was made with knowledge that it was false or with reckless disregard of whether it was false.
- For any claim asserted against a person or entity arising from possible privileged communication or an act by that person or entity that could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Arkansas in connection with an issue of public interest or concern, the party asserting the claim and the party's attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath certifying that:(1) The party and his or her attorney of record, if any, have read the claim; (2) To the best of the party's or his or her attorney's knowledge, information, and belief formed after reasonable inquiry the claim is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (3) The act forming the basis for the claim is not a privileged communication; and (4) The claim is not asserted for any improper purpose such as to suppress a person's or entity's right of free speech or right to petition government, to harass, or to cause unnecessary delay or needless increase in the cost of litigation.
- (a) If a claim governed by Section 16-63-505 is not verified as required by Section 16-63-505, the claim shall be stricken unless it is verified within ten (10) days after the omission is called to the attention of the party asserting the claim or his or her attorney of record.(b)(1) If a claim is verified in violation of Section 16-63-505, the court upon motion or upon its own initiative shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction, which may include dismissal of the claim and an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the claim, including a reasonable attorney's fee.(b)(2) Other compensatory damages may only be recovered upon the demonstration that the claim was commenced or continued for the purpose of harassing, intimidating, punishing, or maliciously inhibiting a person or entity from making a privileged communication or performing an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Arkansas in connection with an issue of public interest or concern.
- (a)(1) All discovery and any pending hearings or motions in an action for a claim governed by Section 16-63-505 shall be stayed upon the filing of a motion to dismiss or a motion to strike under Section 16-63-506.(a)(2) A hearing on a motion filed under Section 16-63-506 shall be conducted not more than thirty (30) days after service unless emergency matters before the court require a later hearing.(b) The court, upon motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding the provisions of subsection (a) of this section.
- Nothing in this subchapter shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, or rule.
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