Summary. An anti-SLAPP motion is a powerful and unforgiving procedural device: filed correctly it ends a case in ninety days with a mandatory fee award, and filed carelessly it educates the plaintiff, generates an adverse ruling, and in some jurisdictions exposes the movant to the plaintiff's fees. The two-step analysis is deceptively simple and the failures cluster in the first step, where the question is not whether speech was involved but whether the protected activity supplies the elements of the claim. This guide runs the motion from the intake evaluation through the evidentiary record, the opposition, the hearing, the fee application, and the appeal, with attention to the deadline, the discovery stay, and the exemptions that defeat otherwise strong motions. It also covers the forum questions — removal, choice of law, and the federal circuit split — that must be resolved before anything is filed.

A client is sued for something they said. They want the case gone, and they have heard there is a motion for that.

There is. It is also the motion most often filed in cases where it does not apply, by counsel who read the statute and not the case law interpreting "arising from." A denied anti-SLAPP motion costs the client thirty to sixty thousand dollars, tells the plaintiff exactly what the defense will be, produces a written ruling the plaintiff will quote for the rest of the case, and in California can generate a fee award against the defendant if the court finds the motion frivolous.

This guide is about filing one well, and about recognizing when not to.

Step one: the forum questions, answered first

Three questions must be resolved before drafting begins, because each can eliminate the motion entirely.

Does the forum have a statute, and what does it cover?

Roughly two-thirds of states have anti-SLAPP statutes, and they differ enormously. California's Code of Civil Procedure § 425.16 is expansive. Texas's Citizens Participation Act was narrowed substantially in 2019. The Uniform Public Expression Protection Act, adopted in a growing number of states, is cleaner and narrower than California's, with an asymmetric fee provision that awards fees to a prevailing movant as of right but to a prevailing respondent only where the motion was frivolous or filed to delay.

A meaningful minority of states have nothing, or have statutes so narrow — limited to statements to government bodies about permit applications, for instance — that they are unavailable in an ordinary defamation case.

Is the case in federal court, and does the statute apply there?

The circuits have split, and the answer is dispositive.

The Ninth Circuit applies California's statute, but under 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 decided 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 — no discovery stay, and no early evidentiary test.

The D.C. Circuit (Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015)), the Eleventh (Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018)), the Fifth (Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019)), and the Second and Tenth Circuits have held that state special motions do not apply in federal court because they conflict with Rules 12 and 56 under Hanna v. Plumer, 380 U.S. 460 (1965), and Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010).

The strategic consequence for a defendant: do not remove. A defendant with a strong anti-SLAPP motion in state court, in a circuit that does not apply the statute, destroys the motion by removing. Diversity jurisdiction is a trap here, and the removal decision should be made only after the anti-SLAPP analysis, never before.

Note that even where the special motion is unavailable, the fee provision may survive as substantive — the authority is mixed and it is worth briefing.

Whose statute applies?

Where the parties are in different states — common in online speech cases — courts have variously treated anti-SLAPP statutes as procedural (applying the forum's law), as substantive (applying the law governing the tort), or as split between the motion and the fee provision. The Ninth Circuit and California courts have generally applied California's statute where California substantive law governs. Brief this early; it can be as consequential as the merits.

Step two: evaluate the motion honestly

Four questions. If any answer is unfavorable, reconsider.

Does the claim arise from protected activity?

This is where motions fail. The question is not whether speech was involved. It is whether the protected activity supplies the elements of the claim.

Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017), is the controlling framing: a claim arises from protected activity when that activity itself constitutes the wrongful conduct on which liability is based — not when protected activity merely provides evidence of, or context for, the claim. A tenure denial communicated through protected statements does not convert a discrimination claim into a SLAPP; the injury is the denial.

Work through the elements of each claim and ask what the plaintiff must prove. If they must prove a statement was made and was false, the claim arises from the statement. If they must prove a contract was breached, a trade secret taken, or a fiduciary duty violated by conduct, the communications around it are evidence rather than the basis.

Baral v. Schnitt, 1 Cal. 5th 376 (2016), permits striking individual allegations of protected activity within a cause of action resting partly on unprotected conduct. This matters: a mixed claim is not automatically outside the statute, but the motion must be framed allegation by allegation.

Which statutory category applies?

Under § 425.16(e), categories (1) and (2) — statements before or in connection with an official proceeding — require no public issue showing. This is the strongest ground available, and it covers filing a lawsuit, sending a demand letter that seriously contemplates litigation, reporting to police, complaining to a licensing board, and testifying.

Categories (3) and (4) — public forum statements and other conduct in furtherance of speech — require an issue of public interest. FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019), asks what public issue the speech implicates and whether the speech contributes to public discussion of it. A statement that merely references a public topic while functioning as a private commercial communication does not qualify.

Plead into category 1 or 2 if the facts allow. It avoids the entire public-interest fight.

Does an exemption apply?

Run this before drafting, not after the opposition raises it.

Cal. Civ. Proc. Code § 425.17(c) exempts 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 removes ordinary false advertising claims from the statute.

Section 425.17(b) exempts public interest actions where the plaintiff seeks no greater relief than the general public.

Section 425.17(d) carves back from both, restoring protection for news media, dramatic and literary works, and certain nonprofit activity. The nesting is genuinely confusing and misreading it is a common error.

UPEPA's exclusions are structured differently and include claims against a government entity, employment claims relating to speech about the employer's business, and claims arising from commercial transactions where the speech is about the goods or services sold.

Can the plaintiff meet step two on the papers?

The plaintiff must show a probability of prevailing — described as a minimal merit standard. The court accepts the plaintiff's evidence as true and 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, and discovery is stayed. Ask honestly: does the plaintiff have a declaration and a document that, taken as true, would support a judgment? If so, the motion loses, and the client has paid for the plaintiff's education.

Step three: the deadline

Cal. Civ. Proc. Code § 425.16(f) requires filing within sixty days of service of the complaint, or later in the court's discretion. UPEPA and other statutes set their own periods, commonly sixty days.

Practical rules:

  • Calendar it the day the complaint arrives. Not the day the client retains you.
  • An amended complaint generally restarts the period as to newly added claims, and courts differ on whether it restarts as to claims carried forward. Do not rely on this.
  • Discretionary late filing is available but the court need not grant it, and the request draws scrutiny.
  • File protectively if the analysis is not complete. A motion filed within the deadline and later withdrawn costs less than one that cannot be filed at all.
  • In federal court where the statute applies, the sixty-day period is generally honored, but the interaction with Rule 12 response deadlines requires attention.

Step four: build the record

The motion is decided on declarations, admissible documentary evidence, and judicially noticeable material. There is no live testimony. The record you file is the record you get.

The defendant's declaration establishing:

  • The context in which the statements were made — where published, to whom, in connection with what proceeding, controversy, or transaction.
  • Facts establishing the statutory category: the official proceeding, the public forum, the public controversy.
  • Where relevant, the basis for the statements — the sources relied on, the investigation done, the documents reviewed. This supports truth, opinion, and the absence of actual malice.

Documentary evidence of the public issue where categories (3) or (4) apply: news coverage, agency filings, regulatory proceedings, public commentary, and evidence of the audience.

Judicially noticeable material under Cal. Evid. Code §§ 451–453 or Fed. R. Evid. 201: court filings, agency records, and official acts. For petitioning-activity motions, the underlying filings are judicially noticeable and are often the entire first-prong showing.

Substantive defenses, presented as part of why the plaintiff cannot show minimal merit: substantial truth, opinion and the absence of a provably false factual assertion, the fair report privilege, the litigation privilege under Cal. Civ. Code § 47(b), the common interest privilege under § 47(c), lack of actual malice where the plaintiff is a public figure or the speech concerns a matter of public concern under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and failure to plead special damages where required.

What to leave out. Argument disguised as declaration. Characterizations of the plaintiff. Anything that reads as retaliation for the suit. The declaration should be sober and factual; the brief carries the argument.

Step five: the discovery stay, and the exception

Filing the motion stays all discovery under § 425.16(g). This is a large part of the motion's value and the reason a defendant with an early-stage case should consider filing even where the merits are close.

The plaintiff may move for leave to conduct specified discovery on a showing of good cause. Courts require specificity — what discovery, directed to what element, and why it is essential to opposing the motion — and grant it sparingly, most often where the plaintiff needs evidence of actual malice that lies exclusively with the defendant.

Where such a motion is made, oppose it on specificity and on the plaintiff's failure to explain why the evidence is unavailable elsewhere. Where discovery is ordered, it is usually narrow, and the hearing on the special motion is continued.

Step six: opposing one

Counsel for a plaintiff facing an anti-SLAPP motion has real options, and panic is not among them.

Attack the first prong. This is where most motions fail. Frame the claim under Park: identify the elements, show that the protected communications are evidence rather than the basis of liability, and point to the unprotected conduct that supplies the elements. Consider whether an amended pleading, if permitted before the motion is heard, can clarify the basis — though note that in California an amendment does not defeat a pending motion.

Invoke the exemptions. Section 425.17(c) removes a great deal of commercial speech from the statute and is under-used.

If the first prong is conceded, meet the second with admissible evidence. Declarations from percipient witnesses, documents authenticated properly, and requests for judicial notice. Allegations do not suffice, and neither does a declaration from counsel reciting what the client says.

Seek specified discovery where an element depends on facts in the defendant's exclusive possession. Be specific.

Consider the fee exposure and the timeline. Losing means a fee award and, in California, an immediate appeal by the plaintiff or an appeal by the defendant if partially denied — either of which adds a year. Where the claim is weak and the exposure is real, early resolution is the rational choice, and it should be discussed with the client before the opposition is filed.

Consider seeking fees yourself. Section 425.16(c)(1) awards fees to a plaintiff where the motion was frivolous or solely intended to cause unnecessary delay, under the standard of § 128.5. Motions that ignore a plainly applicable exemption are the ones that draw this.

Step seven: the hearing and the ruling

Hearings are argument on the papers. Prepare to:

  • State the first prong crisply, in one sentence keyed to Park: "the plaintiff's claim requires proof that my client made a false statement to the licensing board, which is petitioning activity under subdivision (e)(2)."
  • Address every exemption before opposing counsel does.
  • Concede what should be conceded. A motion that seeks to strike a plainly unprotected claim alongside three protected ones is stronger without the fourth.
  • Have the fee figure ready in case the court asks.

Partial grants are common. Under Baral, the court may strike some allegations or claims and leave others. Plan for it: know which claims survive, what the case looks like afterward, and whether the fee award is worth the appeal.

The court must decide both prongs. A ruling that addresses only the first is incomplete and is a ground for appeal.

Step eight: fees

Under § 425.16(c)(1), a prevailing defendant is entitled to fees and costs as a matter of right. This is mandatory, not discretionary, and it is the provision that makes the motion worth bringing.

What is recoverable:

  • Fees incurred on the motion itself.
  • Fees on any appeal of the motion.
  • Fees on the fee motion — fees on fees.
  • Costs.

What is not: fees for defending the entire action where the motion struck only some claims. Where the motion is partially successful, the court apportions, and courts have held that a defendant who achieves no practical benefit from a partial grant may recover nothing.

The practical instruction: segregate time from the first day. Bill anti-SLAPP work to a separate task code, distinct from general defense work, and describe entries so that the allocation is apparent on the face of the invoice. Reconstructing the allocation after the fact is where fee awards get cut in half.

The calculation is a lodestar — reasonable hours times a reasonable rate — with a possible multiplier. Support the rate with declarations from local practitioners and, where available, fee survey data. Support the hours with detailed contemporaneous records.

Under UPEPA, fees to a prevailing movant are likewise mandatory, and fees to a prevailing respondent are available only where the motion was frivolous or filed solely to delay.

Step nine: 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.

Consequences:

  • Trial court proceedings are stayed pending appeal in most jurisdictions, which can add a year or more.
  • This is a substantial defense asset and a substantial plaintiff problem.
  • It is also the feature most open to abuse, which is why California authorizes courts to treat frivolous appeals accordingly and permits fees to a plaintiff on a frivolous motion.

Review is de novo on both prongs, which makes the appellate record — the declarations and judicially noticed material filed below — decisive. Evidence not filed with the motion is not on appeal.

In federal court where the statute applies, denial has generally been held immediately appealable under the collateral order doctrine, on the theory that the statute confers an immunity from suit. This follows the same circuit split.

A filing checklist

  1. Confirm the forum has a statute and identify its terms.
  2. Confirm whether the statute applies in the court where the case sits; do not remove before answering this.
  3. Analyze choice of law where the parties are in different states.
  4. Calendar the filing deadline from the date of service.
  5. Analyze the first prong element by element under Park; identify the statutory category; prefer categories not requiring a public issue.
  6. Run every exemption, including the carve-backs.
  7. Assess honestly whether the plaintiff can meet the minimal merit standard on admissible evidence.
  8. Draft the client declaration establishing context and category, plus supporting documentary evidence.
  9. Prepare a request for judicial notice for court filings and official records.
  10. Brief the substantive defenses as part of the second prong.
  11. File within the deadline; confirm the discovery stay is in effect.
  12. Segregate time to a dedicated task code from the outset.
  13. Prepare for a partial grant and know what the case looks like after one.
  14. File the fee motion promptly, with contemporaneous records and rate support.
  15. Evaluate the appeal on the record actually filed, not on evidence you wish you had submitted.

Primary authority

Two worked motions

The one that wins

A former employee reported suspected wage violations to the state labor commissioner. The employer sued for defamation, breach of the confidentiality provision in the employment agreement, and conversion of company documents.

First prong. The defamation claim arises from a statement made before an official proceeding under § 425.16(e)(1) — no public issue showing required. The confidentiality claim likewise arises from the report itself. Both are squarely protected.

The conversion claim is different. Under Park, the elements are the taking and retention of property, and the report is evidence of what the employee did with the documents rather than the basis of liability. That claim probably survives, and the motion should be framed to strike the first two and, under Baral, any allegations of protected activity embedded in the third.

Second prong. For defamation, the report to the commissioner is absolutely privileged under Cal. Civ. Code § 47(b), and the employer cannot show a probability of prevailing on a privileged communication. For the contract claim, a confidentiality provision cannot lawfully bar a report to a government agency, and several statutes make such a restriction unenforceable.

Record. The employee's declaration establishing the report and its circumstances; the labor commissioner's file, judicially noticed; the employment agreement.

Outcome. Two claims stricken, fees awarded, conversion claim proceeds — and the employer now faces a retaliation claim with its own fee provision.

The one that should not be filed

A software company's marketing materials state that a competitor's product "fails basic security standards." The competitor sues for trade libel and false advertising under the Lanham Act and state law.

Counsel proposes an anti-SLAPP motion on the theory that product security is a matter of public interest.

Why it fails. The commercial speech exemption at § 425.17(c) removes it: these are representations of fact about a competitor's goods, made to promote sales of the movant's own product, to an audience of actual or potential buyers. Every element is satisfied on the face of the marketing materials.

Filing anyway costs the client the motion, produces a written ruling that the statements were commercial speech about a competitor — which is unhelpful on the merits — and invites a fee motion under § 425.17(c)(1) on the ground that the motion was frivolous.

What to do instead. A Rule 12 motion on the falsity and puffery elements, or an early summary judgment motion on substantial truth supported by the security testing that prompted the statement. Slower, less dramatic, and considerably better for the client.

Drafting the brief

The motion has a conventional structure, and departing from it makes the court's work harder.

Introduction, one page. What was said, in what forum, why it is protected, and why the plaintiff cannot show minimal merit. A judge who reads only this page should be able to state the ruling.

Statement of facts, drawn entirely from the declarations and judicially noticed material. No allegations from the complaint presented as fact, and no facts asserted without a citation to a declaration paragraph or an exhibit. Anti-SLAPP practice is unusual in that the moving party's factual record is evidentiary from the outset, and a fact without a citation is not in the record.

First prong, organized by claim. For each cause of action: the elements, the conduct the plaintiff must prove, and why that conduct is protected activity within a specified subdivision of § 425.16(e). Quote the subdivision. Cite Park for the framing and apply it explicitly rather than assuming the connection is obvious.

Where the complaint mixes protected and unprotected conduct, invoke Baral and identify by paragraph number the allegations to be stricken. Courts appreciate a proposed order that does the same.

Exemptions, addressed affirmatively. If the plaintiff will argue § 425.17(c), meet it in the opening brief. Waiting for the reply concedes the initiative on the issue most likely to decide the motion.

Second prong, organized by element and by defense. Take each claim, identify the element the plaintiff cannot establish, and show why — the statement is privileged, is substantially true, is non-actionable opinion, or the plaintiff has no evidence of a required element such as actual malice or special damages. Cite the declaration evidence for each.

Request for judicial notice, filed as a separate document with the exhibits attached and a short statement of the basis under Cal. Evid. Code § 452 or Fed. R. Evid. 201.

Proposed order that tracks the relief precisely, claim by claim and allegation by allegation.

Length discipline. These motions do not improve past twenty pages. The first prong is the whole case in most of them, and a brief that spends fifteen pages on the merits of the defamation defense and two on Park has misallocated its attention.

Tone. Restrained. The client has been sued for speaking, and there is a temptation to write with indignation. Judges discount it, and the appellate court reads the same words de novo.

Counseling the client through it

The procedural sophistication of this motion sits on top of a client experience that is genuinely difficult, and the counseling matters.

Set expectations about cost and timing at the outset. A special motion runs thirty to sixty thousand dollars in an ordinary case and more where the record is complex. It will be heard in roughly two to four months. If it is granted, the plaintiff may appeal, which adds a year — during which the case is stayed but not over. If it is denied, the defendant may appeal, with the same result. The client should understand before filing that "this motion ends the case in ninety days" is true only in the minority of cases where nobody appeals.

Explain the fee award realistically. It is mandatory and it is collectible only from a solvent plaintiff. A judgment for fees against an individual with no assets is a piece of paper. Where the plaintiff is a well-capitalized business, the award is real and changes the settlement dynamic substantially.

Discuss the amplification risk. Litigation about speech republishes the speech. The motion, the ruling, and any appeal are public records, frequently newsworthy, and durable in search results. Some clients want vindication and should have it. Others want the matter to disappear, and for them a quiet resolution may serve better than a published opinion — even a favorable one.

Address the insurance question early. Media liability policies and the personal-and-advertising-injury coverage in some general liability policies may fund the defense, and the duty to defend is broader than the duty to indemnify. Tender promptly; late notice is the most common way coverage is lost. Where the carrier defends, understand who selects counsel and whether a conflict entitles the insured to independent counsel.

Preserve the client's own conduct. Advise the client not to comment publicly about the lawsuit or the plaintiff while it is pending. New statements create new claims that the pending motion does not reach, and a defendant who continues publishing about the litigation hands the plaintiff a second case.

Talk about the endgame. Most of these matters resolve before the appeal concludes. A defendant holding a fee award and an appellate stay has leverage; the settlement that follows frequently involves the plaintiff dismissing with prejudice and the defendant waiving fees. Whether that is a good outcome depends on what the client wanted, which is a conversation to have at the beginning rather than at the mediation.

Where no statute is available

A defendant sued for speech in a state without a usable anti-SLAPP statute, or in a federal court that will not apply one, is not without tools. They are slower and none carries a mandatory fee award, but they work.

Rule 12(b)(6) or the state equivalent. Defamation is one of the few torts where a motion to dismiss is genuinely viable, because several defenses appear on the face of a well-pleaded complaint: the statement is non-actionable opinion, it is not capable of defamatory meaning, it is substantially true on the plaintiff's own allegations, or the plaintiff has failed to plead special damages where required. Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies with full force, and conclusory allegations of falsity and malice are vulnerable.

Early summary judgment. Courts have long recognized that summary judgment has a particular role in First Amendment cases, where the chilling effect of prolonged litigation is itself a harm. A targeted motion on actual malice, filed after narrow discovery, is the closest functional substitute for the special motion.

Noerr-Pennington immunity where the conduct is petitioning — a lawsuit, a demand letter, a regulatory complaint, a legislative submission. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657 (1965), immunize petitioning conduct, subject to the sham exception defined 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 rather than its outcome.

The litigation privilege and its state analogues, which are absolute in most jurisdictions for statements made in or in connection with a judicial proceeding.

Retraction statutes, which in many states limit or eliminate damages where a timely retraction is demanded and given. These carry short demand deadlines that run against the plaintiff, and a plaintiff who failed to demand a retraction may have forfeited presumed and punitive damages entirely — a defense worth checking before anything else.

Section 230, 47 U.S.C. § 230(c)(1), where the defendant is an interactive computer service and the content originated with another. This is an immunity, resolvable early, and it remains broad notwithstanding sustained legislative attention.

Rule 11 and § 1927, where the claim was filed without evidentiary support or for an improper purpose. Slower and discretionary, but the safe harbor letter itself sometimes ends the case.

Related articles

This guide 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. Filing deadlines are short. Consult counsel admitted in the relevant forum before filing or opposing a special motion.