Florida Broadens Its Anti-Slapp Statute, But Is It on the Verge of Death?

By Robert Garcia, Esq.*

In 2000, the Florida legislature enacted Section 768.295, Fla. Stat. titled Strategic Lawsuits Against Public Participation (SLAPP). This section prohibited governmental entities from filing suit against individuals who exercise their right to peacefully assemble, instruct their representatives and petition for redress of grievances before various governmental entities.

In 2015, the legislature expanded Section 768.295 to prohibit the filing of SLAPP lawsuits not only by governmental entities, but also to individuals. The legislature further expanded the scope of the statute to include statements made in connection with the media and arts. The prohibition of SLAPP lawsuits applies only to those suits that are “without merit and primarily” because such person or entity has exercised their constitutional right of free speech on a public issue and/or the media and arts. If a SLAPP lawsuit is filed, a defendant is entitled to an expeditious resolution by way of a motion to dismiss or summary judgment, and the prevailing party is entitled to reasonable attorney fees and costs.

By requiring that the lawsuit be “without merit and primarily” because a defendant exercised his or her right of free speech on a public issue or in connection with the arts and/or media, the legislature provided a loophole for plaintiffs to argue that the defendant’s conduct had an ulterior motive and/or was unrelated, thereby defeating a defendant’s chances of prevailing on a motion to dismiss pursuant to the anti-SLAPP statute.

In a recent central Florida case, the plaintiff, a real estate developer, filed suit against the president of a commercial homeowner association in his individual capacity based on the defendant’s objection, made before the local municipal planning board, of the plaintiff’s intent to develop a parcel of land. The municipal planning board found that the defendant’s objections were without merit and unrelated to any of the issues of the plaintiff’s project. As a result of the defendant’s objections, the plaintiff filed suit for malicious prosecution and abuse of process. The plaintiff claimed that the defendant’s objections delayed the project and resulted in additional expenses.

In response, the defendant filed a motion to dismiss, arguing that the lawsuit was prohibited pursuant to Section 768.295 as it concerned the defendant’s free speech in connection with a public issue. The trial court denied the defendant’s motion, finding that the statute requires “meritless claims” and that the defendant’s objections, as founded by the municipal planning board, had no bearing. The court also found that the defendant’s objections may have been the result of a personal vendetta between the parties stemming from unrelated private matters. Finally, the court held that in order to invoke the anti-SLAPP statute, it must be “clear on the face of the Complaint that the claims are meritless and serve solely or primarily to silence a concerned citizen,” as the Florida Constitution guarantees that “[t]he Courts shall be open to every person for redress of any injury.” (Art. I, §21, Fla. Const.)

By requiring courts to look at whether the defendant’s conduct is “without merit,” the Florida legislature unintentionally provided a loophole for plaintiffs to circumvent the anti-SLAPP statute’s purpose of providing protection to individuals when exercising their constitutional right of free speech before the various governmental entities. Had the legislature drafted Section 768.295 to prohibit the filing of any lawsuit against an individual who voices his concern before a governmental entity on a public issue, regardless of whether the concern is valid, the intent of the anti-SLAPP statute would have prevailed. As a result of this loophole, individuals must be cautious in exercising free speech, as unfounded objections—despite having merit from their perspective—may result in unforeseen lawsuits costing them thousands of dollars.

Finally, in the recent case of Davis v. Cox, 351 P.3d 862 (Wash. 2015), the Washington Supreme Court struck down that state’s anti-SLAPP statute on the basis that its procedure for early dismissal violated the Washington Constitution’s right to a jury trial. In its conclusion, the Washington Supreme Court noted that the anti-SLAPP statute created a “constitutional conundrum” in that “it seeks to protect one group of citizens’ constitutional rights of expression and petition by cutting off another group’s constitutional rights of petition and jury trial. This the legislature cannot do.” In light of Florida’s constitutional right of access to the courts to seek “redress of any injury,” Florida’s anti-SLAPP statute may find itself facing the same fate as that of Washington’s.

Despite the Florida legislature’s intent to protect its citizens from frivolous suits, individuals should be cautious when exercising their right to free speech before the various governmental entities, especially when their concerns are found to be without merit, as such speech may unintentionally subject them to a lawsuit that could cost them and their insurance carriers thousands of dollars in litigation expenses. Until the Florida legislature amends Section 768.295 to protect all speech, regardless of whether or not it has merit, individuals will find themselves in a disheartening place before the courts for speech they believed was protected. However, even if such an amendment passes, Section 768.295 may find itself near its deathbed should its constitutionality be challenged.

*Robert is an associate in our Orlando, Florida office. He can be reached at 407.420.4394 or rrgarcia@mdwcg.com.

_{Defense Digest, Vol. 22, No. 2, June 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}