Summary. An anti-SLAPP statute is an unusual piece of machinery: a procedural device that lets a defendant test the merits of a claim before discovery, shifts fees to the prevailing defendant as a matter of right, and in many states permits an immediate appeal from denial. It exists because a certain kind of lawsuit is filed to impose cost rather than to win, and ordinary procedure handles that badly. The statutes vary enormously — California's is expansive and heavily litigated, several states have adopted the Uniform Public Expression Protection Act, and a dozen states have nothing at all — which makes forum and choice of law unusually consequential. This article explains the two-step framework, the exemptions that swallow more than practitioners expect, the unresolved question of whether these statutes apply in federal court, and how to use one without triggering the fee award yourself.

The acronym is ungainly but the idea is simple. A SLAPP — a strategic lawsuit against public participation — is a case filed not to obtain a judgment but to impose a cost. The plaintiff does not particularly expect to win. The plaintiff expects the defendant to spend forty thousand dollars, lose two years, and conclude that criticizing the plaintiff was a mistake.

The classic version involves a developer suing neighbors who opposed a zoning application. The modern version is more often a business suing a former customer over a one-star review, a public figure suing a journalist, a company suing a researcher who published a vulnerability, or an employer suing a former employee who spoke to a regulator.

Ordinary civil procedure handles this badly. A motion to dismiss under Rule 12(b)(6) tests the complaint's allegations, which a competent plaintiff can plead adequately. Summary judgment tests the evidence, but only after discovery — and discovery is the cost the lawsuit was designed to impose. By the time the defendant wins, the lawsuit has already worked.

Anti-SLAPP statutes exist to close that gap. Roughly two-thirds of states have one, and they differ enough that a practitioner competent in California's statute can be dangerously wrong about Texas's.

The basic architecture

Nearly every anti-SLAPP statute follows the same two-step burden-shifting structure, though the labels and standards vary.

Step one: the defendant shows the claim arises from protected activity. The moving defendant must demonstrate that the cause of action arises from an act in furtherance of the right of petition or free speech in connection with a public issue. This is a threshold about the conduct being sued over, not about the merits.

Step two: the plaintiff shows the claim has merit. If step one is satisfied, the burden shifts. The plaintiff must make some showing — the standard is variously described as a probability of prevailing, a prima facie case, or clear and specific evidence — that the claim can survive. Critically, this showing is made on the papers, usually with discovery stayed.

If the plaintiff fails, the claim is stricken and, in most states, the defendant recovers attorney's fees as a matter of right rather than discretion.

That fee provision is the engine. Without it, an anti-SLAPP motion is just an early summary judgment motion. With it, the calculus of filing a marginal speech-related claim changes entirely, because the plaintiff is now underwriting the defendant's defense.

California: the most developed statute

California's statute, Cal. Civ. Proc. Code § 425.16, is the one with the largest body of case law, and it is worth understanding in detail even for practitioners elsewhere, because other states borrowed its structure.

Protected activity under § 425.16(e)

The statute defines four categories:

  1. Written or oral statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
  2. Statements made in connection with an issue under consideration or review by such a body.
  3. Statements made in a place open to the public or a public forum in connection with an issue of public interest.
  4. Any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest.

Categories 1 and 2 do not require a public issue. Categories 3 and 4 do. That distinction decides a great many motions.

The first two categories reach far beyond what most people would call speech. Filing a lawsuit is protected petitioning activity. So is a demand letter that seriously contemplates litigation, a report to the police, a complaint to a licensing board, and testimony in an administrative hearing. This is why malicious prosecution and abuse of process claims are routinely subject to anti-SLAPP motions — the conduct complained of is, definitionally, petitioning.

What "arising from" means

The most litigated question in California anti-SLAPP practice is not what counts as protected activity but when a claim "arises from" it. Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017), drew the essential line: a claim arises from protected activity when the protected activity itself supplies the elements of the claim, not merely when protected activity provides evidence of, or context for, the claim. A denial of tenure communicated through protected statements does not make a discrimination claim a SLAPP; the injury is the denial, not the communication.

Baral v. Schnitt, 1 Cal. 5th 376 (2016), resolved the mixed-cause-of-action problem: a motion may strike individual allegations of protected activity within a cause of action that also rests on unprotected conduct. The court analyzes claims, not causes of action as pleaded.

The public interest question

For categories 3 and 4, the statement must concern an issue of public interest. FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019), set the two-part inquiry: what public issue does the speech implicate, and does the speech contribute to public discussion of that issue. The second part matters — a statement that mentions a matter of public concern but is functionally a private commercial communication does not qualify.

Rand Resources, LLC v. City of Long Beach, 6 Cal. 5th 610 (2018), similarly held that speech about a matter of public interest is not protected merely because the subject is public; the connection has to be substantive.

Step two: the plaintiff's showing

The plaintiff must demonstrate a probability of prevailing, which California courts describe as a "minimal merit" standard. The court accepts the plaintiff's evidence as true and asks only whether it would, if credited, support a judgment. It does not weigh credibility. Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260 (2006).

But the plaintiff must produce admissible evidence, not allegations. This is the harder requirement, and it is the reason the discovery stay matters so much: a plaintiff who needs discovery to prove the claim will usually lose, unless the court grants leave for specified discovery on a showing of good cause under § 425.16(g).

The exemptions

Two exemptions do enormous work.

The commercial speech exemption, § 425.17(c), removes claims arising from representations of fact about a business's own or a competitor's goods or services, made for the purpose of promoting sales, where the audience is an actual or potential buyer. This exists because businesses were using anti-SLAPP motions against ordinary false advertising claims.

The public interest exemption, § 425.17(b), removes actions brought solely in the public interest where the plaintiff seeks no greater relief than the general public and the action would enforce an important right affecting the public interest.

Section 425.17(d) then carves back from the exemptions, restoring protection for news media, for dramatic and literary works, and for certain nonprofit activity. The nesting is genuinely confusing and is a common source of error.

Texas, the Uniform Act, and the rest of the country

The Texas Citizens Participation Act

Texas enacted the TCPA — confusingly sharing an acronym with the telemarketing statute — at Tex. Civ. Prac. & Rem. Code §§ 27.001–27.011. As originally drafted it was extraordinarily broad, reaching any legal action based on or in response to a party's exercise of the right of free speech, petition, or association, with "free speech" defined as a communication made in connection with a matter of public concern.

Texas courts applied that language literally, and the statute began swallowing ordinary commercial disputes — trade secret cases, non-compete cases, and business torts were all being dismissed on the theory that they responded to communications. The 2019 amendments narrowed the definitions substantially, added exemptions for trade secret and non-compete claims, and tightened the association prong. The statute remains powerful but is no longer a general-purpose dismissal tool.

The TCPA's plaintiff-side standard is also distinctive: the respondent must establish by clear and specific evidence a prima facie case for each essential element. In re Lipsky, 460 S.W.3d 579 (Tex. 2015), held this requires more than conclusory allegations but does not import a heightened evidentiary standard beyond the ordinary prima facie showing.

The Uniform Public Expression Protection Act

UPEPA, promulgated by the Uniform Law Commission in 2020, is the modern model and has been adopted in a growing number of states. It is deliberately cleaner than California's statute:

  • Coverage extends to communications on matters of public concern, in a governmental proceeding, or on an issue under consideration in one — with express exclusions for claims against a government entity, claims by an employee against an employer relating to speech about the employer's business, and claims arising from commercial transactions where the speech is about the goods or services sold.
  • Discovery is automatically stayed on filing, with narrow exceptions.
  • The court dismisses if the responding party fails to state a cause of action or fails to establish a prima facie case, or if the moving party establishes an entitlement to judgment as a matter of law.
  • Fees to a prevailing movant are mandatory; fees to a prevailing respondent are available only where the motion was frivolous or filed solely to delay.
  • Expedited interlocutory appeal is express.

That last asymmetry is deliberate and addresses a genuine problem: an unbalanced fee provision encourages defendants to file anti-SLAPP motions in cases that are not SLAPPs, because the motion is nearly free.

The states without statutes

A meaningful minority of states still have no anti-SLAPP statute, and several have statutes so narrow — limited, for instance, to statements made to government bodies about permit applications — that they are functionally unavailable in a defamation case. In those jurisdictions, the tools are the ordinary ones: a motion to dismiss, the applicable retraction statute, the litigation privilege, Noerr-Pennington immunity for petitioning activity, and, where available, an early motion for summary judgment on actual malice.

There is no federal anti-SLAPP statute. Bills have been introduced repeatedly and none has passed.

The federal court problem

This is the most consequential unresolved question in the area, and the answer depends entirely on where you are.

The issue is Erie. A federal court sitting in diversity applies state substantive law and federal procedural law. Is an anti-SLAPP statute substantive or procedural? Its fee-shifting looks substantive. Its burden-shifting mechanism looks procedural, and arguably conflicts with Rules 12 and 56, which under Hanna v. Plumer, 380 U.S. 460 (1965), and Shady Grove Orthopedic Associates v. Allstate Insurance Co., 559 U.S. 393 (2010), would displace it.

The circuits have split.

The Ninth Circuit applies California's statute in federal court, subject to an important modification from Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018): a motion challenging the legal sufficiency of the complaint is evaluated under the Rule 12(b)(6) standard, while a motion challenging factual sufficiency is treated under Rule 56 with discovery permitted. That modification removes much of the statute's practical advantage.

The First Circuit has applied Maine's statute, and the Fifth Circuit initially applied Louisiana's.

The D.C. Circuit in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015), held that the D.C. statute's special motion does not apply in federal court because it conflicts with Rules 12 and 56. The Eleventh Circuit reached the same conclusion as to Georgia's statute in Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018). The Fifth Circuit reversed course as to the Texas statute in Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019). The Second and Tenth Circuits have likewise declined to apply state anti-SLAPP special motions in federal court.

The practical consequences are large and cut in both directions:

  • For defendants, removal can destroy an anti-SLAPP defense. A defendant with a strong anti-SLAPP motion in state court should think hard before removing, and may prefer to stay.
  • For plaintiffs, filing in federal court — where jurisdiction exists — may avoid the statute entirely in an unfavorable circuit.
  • Fee provisions may survive even where the special motion does not, since fee-shifting is more readily characterized as substantive. This is not uniform.

Because the answer varies by circuit and by statute, the analysis has to be done for the specific forum before any filing decision is made.

Interlocutory appeal

In California, an order granting or denying a special motion to strike is immediately appealable under Cal. Civ. Proc. Code § 904.1(a)(13). UPEPA provides for expedited interlocutory appeal. Several other statutes do the same.

This is a substantial strategic asset for a defendant and a substantial problem for a plaintiff, because the appeal stays trial court proceedings and can add a year or more. It is also the feature that most invites abuse: a defendant with a weak motion still buys delay. California addressed this in part by permitting the trial court to find a motion frivolous under § 425.16(c)(1) and award fees to the plaintiff, and by authorizing courts to deem certain appeals frivolous.

In federal court, where the special motion applies, denial has generally been held immediately appealable under the collateral order doctrine on the theory that the statute confers an immunity from suit rather than a defense to liability — though this too is contested and follows the same circuit split.

Using the motion well

Deciding whether to file

An anti-SLAPP motion is not free even where fees are recoverable, and a denied motion can be worse than no motion at all — it educates the plaintiff, generates an adverse ruling, and in some jurisdictions exposes the defendant to the plaintiff's fees if the motion was frivolous.

Ask four questions:

Does the claim genuinely arise from protected activity, in the Park sense? Not "was there speech involved" but "do the protected communications supply the elements." Motions fail on this more than on anything else.

Does an exemption apply? Run the commercial speech exemption analysis before filing, not after the opposition raises it.

Can the plaintiff meet the step-two showing on the papers? If the plaintiff has a declaration and a document, the motion loses and the defendant has paid for the privilege.

Does the forum's law apply here at all? If the case is in federal court in the Fifth, Tenth, Eleventh, or D.C. Circuits, the special motion is likely unavailable.

Timing

Most statutes require filing within a set period after service — sixty days in California under § 425.16(f), subject to the court's discretion to permit a later motion. Do not let the deadline run while evaluating; file protectively if necessary.

Building the record

The motion is decided on declarations and judicially noticeable material. Assemble:

  • A declaration establishing the context of the statements — where published, to whom, in connection with what proceeding or public controversy.
  • Documentary evidence of the public issue: news coverage, agency filings, regulatory proceedings, the volume of public engagement.
  • For petitioning activity, the underlying filings themselves, which are judicially noticeable.
  • Where relevant, evidence that the statements were opinion, substantially true, privileged, or protected by a fair report or neutral reportage privilege.

Fees

Fees under § 425.16(c) include fees incurred on the motion, on any appeal, and on the fee motion itself. They do not extend to the entire defense of the action where the motion strikes only some claims. Keep contemporaneous time records segregated by claim from the outset, because reconstructing the allocation later is where fee awards get cut.

The plaintiff's side: how to plead around it

Counsel for a plaintiff with a legitimate claim that touches on speech has real options.

Plead the unprotected conduct. If the injury arises from a course of conduct — breach of a contract, misappropriation of trade secrets, a fiduciary breach — plead the conduct as the basis of the claim and keep protected communications out of the elements. Park makes this the decisive framing.

Use the exemptions deliberately. A false advertising claim about a competitor's representations regarding its own products fits squarely within § 425.17(c).

Assemble evidence before filing. Because step two requires admissible evidence and discovery will be stayed, the investigation has to be done pre-filing. A plaintiff who files intending to develop the case in discovery has, in an anti-SLAPP state, made an unrecoverable error.

Consider the forum. Where diversity jurisdiction exists and the circuit does not apply the statute, federal court may be available. Be candid with the client that this looks like forum shopping because it is.

Consider whether the claim should be brought at all. The honest advice in many of these cases is that the client has been criticized, that the criticism is protected, and that a lawsuit will amplify it. The Streisand effect is not a legal doctrine, but it is a reliable one.

Primary authority

Five recurring fact patterns

The doctrine becomes legible through the cases that actually get filed.

The one-star review

A customer posts a negative review. The business sues for defamation and tortious interference, sometimes adding a breach of a non-disparagement clause buried in the terms of service.

The review is almost always protected: an online review platform is a public forum, and the quality of a business's goods or services is generally an issue of public interest where the business markets to the public. The claim usually fails at step two because the review is opinion, or is substantially true, or because the business cannot produce evidence of falsity and damages on the papers.

The non-disparagement theory has an additional problem. The Consumer Review Fairness Act, 15 U.S.C. § 45b, voids form-contract provisions that restrict a consumer's ability to review goods or services, and makes their imposition an FTC Act violation. A claim built on such a clause is not merely weak; it is affirmatively unlawful to assert.

The former employee who complained

An employee reports safety violations to OSHA, wage theft to the Department of Labor, or fraud to the SEC, and the employer sues for breach of confidentiality, conversion of documents, or defamation.

Reports to a regulator are quintessential petitioning activity under the first two statutory categories, and no public-issue showing is required. Add that most whistleblower statutes contain their own anti-retaliation provisions with fee-shifting, and the employer has often created two problems.

Where the employer's real grievance is the taking of documents rather than the report, the Park framing matters: a conversion claim resting on the removal of files, pleaded without reference to what the employee told the agency, may survive.

The researcher and the vulnerability

A security researcher publishes a vulnerability, or a scientist publishes a study critical of a product. The company sues for defamation, trade libel, or violation of terms of service.

Public-interest protection is usually straightforward. Step two turns on falsity and, where the plaintiff is a public figure or the speech concerns a matter of public concern, on actual malice — a standard that is difficult to establish on declarations without discovery. These cases frequently end at the special motion.

The neighbor and the permit

The original SLAPP. Residents oppose a development at a planning commission hearing; the developer sues for interference with prospective economic advantage.

Statements before an official proceeding are protected under category 1 without any public-issue showing. Noerr-Pennington supplies a parallel immunity for petitioning even in states without a statute, subject only to the sham exception described in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993), which requires that the petitioning be both objectively baseless and subjectively intended to interfere through the process itself rather than its outcome.

The competitor's advertisement

A company's advertising disparages a competitor's product. The competitor sues under the Lanham Act and state law, and the advertiser files an anti-SLAPP motion.

This is where the commercial speech exemption does its work. Representations of fact about the advertiser's own or a competitor's goods, made to promote sales to an audience of actual or potential buyers, are removed from the statute by § 425.17(c). An advertiser who files anyway is usually inviting a frivolousness finding.

What the statutes cannot fix

It is worth being clear-eyed about the limits.

Anti-SLAPP statutes address the cost of defending a meritless claim. They do nothing about the cost of the demand letter that never becomes a claim, which is where most speech suppression actually happens. A letter from a well-resourced firm to an individual blogger produces a takedown far more often than it produces litigation, and no procedural statute reaches it.

They also do nothing about the plaintiff who can afford to lose. A fee award against a well-capitalized plaintiff is a cost of doing business; the defendant still spent a year and the deterrent message still landed with everyone watching.

And they create their own abuse. A statute that gives any defendant a free early merits test, a discovery stay, and an interlocutory appeal is an attractive delay device in cases that have nothing to do with public participation. The pre-2019 Texas experience is the clearest illustration: a statute drafted to protect citizen speech became a standard opening move in commercial litigation. UPEPA's asymmetric fee provision and narrower coverage are direct responses to that experience, and represent the current best thinking on how to protect speech without handing every defendant a procedural weapon.

The honest summary is that anti-SLAPP statutes are a good partial solution to a real problem, that their variation across states is a genuine obstacle to consistent advice, and that the federal court question badly needs either a circuit-splitting Supreme Court decision or the federal statute that Congress has declined to pass for two decades.

The SLAPPback and other affirmative remedies

A defendant who wins an anti-SLAPP motion has recovered fees but has not been made whole for the reputational damage, the lost time, or the chilling of whatever they were doing when they were sued. Several tools address the residue.

The SLAPPback. California authorizes a specific cause of action at Cal. Civ. Proc. Code § 425.18: a malicious prosecution claim by a defendant who prevailed on a special motion to strike, brought against the SLAPP plaintiff and its counsel. The statute expressly makes the SLAPPback itself immune from an anti-SLAPP motion in most respects, which resolves the obvious infinite-regress problem. The elements remain those of malicious prosecution — favorable termination, lack of probable cause, and malice — and probable cause is a real obstacle, because a claim can lack minimal merit for anti-SLAPP purposes without being objectively baseless.

Ordinary malicious prosecution and abuse of process. Available in most states, subject to the same difficulty, and in anti-SLAPP jurisdictions subject to the irony that the malicious prosecution claim is itself based on protected petitioning activity and will draw its own special motion.

Sanctions. Rule 11 in federal court, and state analogues, where the pleading lacked evidentiary support or was filed for an improper purpose. Section 425.16(c)(1) allows a plaintiff to recover fees where the special motion was frivolous, which is the mirror-image remedy.

Fee recovery on appeal. Fees incurred defending an appeal from a granted motion are recoverable, and this is frequently the largest component of the award.

Insurance. Media liability policies and some general liability policies with personal-and-advertising-injury coverage may fund the defense of a speech-related claim, and the duty to defend is broader than the duty to indemnify. Tender early; late notice is the most common coverage forfeiture.

The practical counsel to a prevailing defendant is usually to take the fee award and stop. A SLAPPback extends the litigation the client wanted to end, invites a special motion in response, and rarely produces a collectible judgment. It is worth pursuing where the original suit was part of a documented pattern, where the plaintiff is solvent, and where the client's interest is genuinely in deterrence rather than compensation.

Choice of law: whose anti-SLAPP statute applies

A question that arises constantly in online speech cases and has no clean answer.

A blogger in Oregon writes about a company headquartered in Georgia. The company sues in Georgia. Does Oregon's statute — which the defendant would prefer — apply?

Courts have taken three approaches. Some treat anti-SLAPP statutes as procedural, applying the forum's law regardless of which state's substantive law governs the tort. Some treat them as substantive, applying the law of the state whose defamation law governs under ordinary choice-of-law principles. Some split the statute, treating the special motion as procedural and the fee provision as substantive.

The Ninth Circuit and California courts have generally applied California's statute where California substantive law governs the claim, treating the statute as substantive for choice-of-law purposes even while other circuits treat it as procedural for Erie purposes. The two questions are analytically distinct and courts do not always keep them separate.

For counsel, the practical consequences are:

Forum selection matters more than usual. A plaintiff choosing among available forums is choosing among anti-SLAPP regimes, and the difference between a mandatory fee award and none is often larger than any difference in substantive law.

Contractual forum selection clauses reach further than expected. A terms-of-service clause designating a no-statute jurisdiction may strip an anti-SLAPP defense from a user who posts a review. Whether such a clause is enforceable against a consumer is a separate fight, and the Consumer Review Fairness Act may bear on it.

Anti-SLAPP analysis belongs in the pre-suit memo, not the answer. By the time the defendant is choosing whether to remove, the forum decisions that determine whether a statute is available have already been made by someone else.

Where the speech is online and the parties are in different states, expect the choice-of-law fight to be as consequential as the merits, and brief it first.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Anti-SLAPP statutes differ substantially by state, several have been amended in ways that materially changed their scope, and whether a state special motion applies in federal court depends on the circuit and remains unsettled. Deadlines to file are short and are frequently jurisdictional in effect. Consult counsel admitted in the relevant forum before filing or responding to a special motion.