You asked whether other states have laws that deal with SLAPP suits and whether Connecticut has considered such legislation.

SUMMARY

Strategic Lawsuits Against Public Participation (SLAPP lawsuits) are civil complaints or counterclaims against either an individual or an organization in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U. S. Constitution or comparable provisions of state constitutions. SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals or organizations that oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.

Critics of SLAPPs claim that even though the lawsuits are legally without merit, they nonetheless often achieve their principal purpose of chilling or ending public debate on specific issues. Defending a SLAPP can require substantial money, time, and legal resources and thus can divert the defendant's attention away from the public issue. In addition, critics claim that a SLAPP also warns others that they can be sued also.

Three New England states (Maine, Massachusetts, and Rhode Island) have anti-SLAPP laws. They follow the same general pattern. They allow the defendent of a SLAPP to file a motion asking the court to dismiss the suit, which has the effect of temporarily freezing the suit until the court rules on the motion.

In Maine and Massachusetts, the law requires the court to grant this motion unless the party against whom the motion was filed shows that:

1. there was no factual basis for the party filing the motion to claim he or she was exercising a constitutional right or that he or she suffered any actual injury, and

2. the moving party's acts caused actual injury to the responding party.

Under Rhode Island law, a party's exercise of his or her state or federal right of petition or free speech in connection with a matter of public concern is conditionally immune from suit unless the petition or free speech constitutes a sham. The petition or free speech will be deemed a sham only if it is both:

1. objectively baseless because no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome and

2. subjectively baseless because it is actually an attempt to use the governmental process itself for its own direct effects.

At least 21 other states have enacted some form of legal protections against SLAPPs. They are Arkansas, Delaware, Florida, Georgia, Hawaii, Indiana, Louisiana, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Washington, and West Virginia.

Connecticut considered legislation to provide protection against SLAPPs during the 1991 and 1993 legislative sessions. In 1991, the Judiciary Committee raised a bill (Raised Bill 7343) and held a public hearing on it but took no further action. Another bill was referred to the committee (Proposed Bill 439) but was never drafted. In 1993, the Judiciary Committee considered three bills. Two were referred to it (Proposed Bills 150 and 248) but never drafted. The committee drafted the third bill (Raised Bill 1026), held a public hearing, but took no further action.

Connecticut has a somewhat related statute but its application is much broader. Anyone who files any civil action or complaint against another, or asserts a defense to any civil action or complaint begun by another, (1) without probable cause, must pay such other person double damages or (2) without probable cause, and with a malicious intent unjustly to vex and trouble the other person, must pay him triple damages (CGS § 52-568).

BACKGROUND

The following information was taken directly from the The First Amendment Project's website. The project is a nonprofit, public interest advocacy organization that seeks to protect and promote freedom of information, expression, and petition.

Generally, a “SLAPP” is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials, and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, or interference with contract or economic advantage, as a means of transforming public debate into lawsuits.

Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they can still succeed in the public arena because defending a SLAPP often requires a substantial investment of money, time, and resources.

SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:

1. writing a letter to the editor,

2. circulating petitions,

3. calling a public official,

4. reporting police misconduct,

5. erecting a sign or displaying a banner on their property,

6. complaining to school officials about teacher misconduct or unsafe conditions in the school,

7. speaking at a public meeting,

8. reporting unlawful activities,

9. testifying before Congress or state legislatures,

10. speaking as an officer of an active public interest group, and

11. filing a public interest lawsuit.

EXAMPLES OF SLAPP SUITS

In Hometown Properties, Inc. v. Fleming (680 A 2d 56 (1996)), landfill owners sued a person who submitted written statements to state and federal officials concerning potential environmental concerns resulting from landfill activities.

The plaintiffs owned a landfill in North Kingstown, Rhode Island. On two occasions a number of North Kingstown residents, including the defendant, participated in meetings with the director of the Rhode Island Department of Environmental Management (DEM). The meetings focused on two issues: (1) alleged ground-water contamination caused by landfills, specifically plaintiffs' landfill and (2) DEM's proposed rules and regulations concerning landfills. Following these meetings, the defendant wrote a letter to the director and posted copies to various state and federal officials. Among other things the letter alleged that the landfill contains hazardous waste, the landfill continues to contaminate offsite groundwater exceeding maximum contamination levels, the landfill should be closed and cleaned-up, and onsite monitoring wells were never purposely placed to detect contamination.

In response, the plaintiff, through its counsel, informed the defendant by letter that if she did not either (1) provide the specific facts and documents on which her statements were based or (2) confirm in writing that she will promptly furnish a retraction to the director and the other officials, then it would have no alternative but to pursue formal legal remedies.

The defendant did not retract her statements, and the plaintiff subsequently sued her, alleging defamation and tortious interference with contractual relations and sought compensatory and punitive damages.

The defendant filed a motion to dismiss the lawsuit alleging it was a SLAPP suit. The Superior Court denied the motion. But the Supreme Court in construing the state's anti-SLAPP statute for the first time, ruled that (1) the statute was constitutional; (2) people could not circumvent the statute by including defamation as part of their lawsuit; and (3) as a matter of law, the person who was sued did not engage in any sham activity and was protected by the anti-SLAPP statute.

In a subsequent Rhode Island case, a school building committee member filed a lawsuit alleging libel and false light against the author of letters to the editor of a local newspaper concerning the committee's handling of a proposed school building project. The author claimed that he had noticed what he would call a “close” relationship between a member of the school building committee and the construction manager.

The Superior Court granted summary judgment for the author because the letters were immune under the state anti-SLAPP statute (Alves v. Hometown Newspapers, Inc. , 857 A. 2d 743 (2004)). The court concluded that the letters were prototypical examples of a protected exercise of free speech in a public forum on an issue of public concern and entitled to immunity under the anti-SLAPP statute.

MAINE (MRS TITLE 14 § 556)

Under Maine law, when a person involved in civil litigation believes that a claim, counterclaim, or cross claim against him is because he exercised his right of petition under the state or federal constitution, he may file a special motion asking the court to dismiss it. The court must hear and decide this motion as soon as possible.

(A “counterclaim” is a civil defendant's court papers that allege that it was the plaintiff, not the defendant, who committed legal wrongs and that as a result it is the defendant who is entitled to money damages or other relief. Usually filed as part of the defendant's answer, which also denies plaintiff's claims, a counterclaim is commonly but not always based on the same events that form the basis of the plaintiff's complaint. )

(A “cross claim” is legal paperwork that a civil defendant files to initiate his own lawsuit against the original plaintiff, a co-defendant, or someone who is not yet a party to the lawsuit. A cross-complaint must deal with the same events that gave rise to the original lawsuit. )

The law requires the court to grant this motion, unless the party against whom the motion was filed shows that:

1. there was no factual basis for the party filing the motion to claim he or she was exercising a constitutional right or that he or she suffered any actual injury, and

2. the moving party's acts caused actual injury to the responding party.

In making its determination, the court must consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The attorney general on the attorney general's behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed may intervene to defend or otherwise support the moving party on the special motion.

The filing of the motion automatically stops the “discovery process. ” (Generally the “discovery process” refers to the efforts of a party to a lawsuit to obtain information before trial through demands for certain documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights. )

But the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. Otherwise, discovery may only resume when the court rules on the motion.

The special motion to dismiss may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms the court determines proper.

If the court grants a special motion to dismiss a claim, counter claim or cross complaint, it may award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.

Exercise of the Right to Petition

The Maine law defines “a party's exercise of its right of petition” as:

1. any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding;

3. any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body, or any other governmental proceeding;

4. any statement reasonably likely to enlist public participation in an effort to effect such consideration; or

5. any other statement falling within constitutional protection of the right to petition government.

MASSACHUSETTS (M. G. L. A. 231 § 59H)

Motion to Dismiss

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against him or her are based on the exercise of the right of petition under the state of federal constitution he or she may bring a special motion to dismiss. The court must advance any such special motion so that it may be heard and determined as expeditiously as possible. The court must grant such special motion, unless the party against whom such special motion is made shows that:

1. the moving party's exercise of the right to petition was devoid of any reasonable factual support or any arguable basis in law and

2. the moving party's acts caused actual injury to the responding party.

In making its determination, the court must consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The special motion to dismiss may be filed within sixty days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.

Exercise of the Right to Petition

The law defines “a party's exercise of the right of petition” as any:

1. written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding;

3. statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding;

4. statement reasonably likely to enlist public participation in an effort to effect such consideration; or

5. other statement falling within constitutional protection of the right to petition government.

Attorney General

The law authorizes the attorney general, on his behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed, to intervene to defend or otherwise support the moving party on such special motion.

Discovery

All discovery proceedings are stayed upon the filing of the special motion; provided that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the special motion.

Costs and Reasonable Attorney's Fees

If the court grants the motion to dismiss, the court must award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.

RHODE ISLAND

Legislative Findings (R. I. Gen. Laws § 9-33-1)

The Rhode Island legislature found and declared that:

1. full participation by persons and organizations and robust discussion of issues of public concern before the legislative, judicial, and administrative bodies and in other public places are essential to the democratic process;

2. there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; and

3. such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern.

Conditional Immunity (§ 9-33-2)

Under Rhode Island law, a party's exercise of his or her state or federal right of petition or of free speech in connection with a matter of public concern is conditionally immune from civil claims, counterclaims, or cross-claims. This immunity bars any civil claim, counterclaim, or cross-claim directed at a petition or free speech as defined by law, unless the petition or free speech constitutes a sham.

The petition or free speech constitutes a sham only if it is not genuinely aimed at procuring a favorable government action, result, or outcome, regardless of the ultimate motive or purpose. The petition or free speech will be deemed to constitute a sham only if it is both:

1. objectively baseless because no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome; and

2. subjectively baseless because it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects.

Exercise of the Right to Petition or Free Speech

The law defines “a party's exercise of the right of petition or of free speech” as:

1. any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or

3. any written or oral statement made in connection with an issue of public concern.

Discovery

The law requires the court to stop all discovery proceedings in the action upon the filing of a motion asserting the statutory immunity. But the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the motion.

Costs, Attorney's Fees, and Damages

If the court grants the motion asserting the immunity, or if the party claiming lawful exercise of his or her rights eventually prevails at trial, the court must award costs and reasonable attorney's fees, including those incurred for the motion and any related discovery matters. The court must award compensatory damages and may award punitive damages if he or she proves that the responding party's claims, counterclaims, or cross-claims were frivolous or brought with the intent to harass the party or otherwise inhibit his or her exercise of the constitutional right to petition or free speech. The law specifies that it does not affect or preclude the right of the party to any remedy otherwise authorized by law.

Appeals — Participation in Zoning Hearing (§ 45-24-67)

Participation in a zoning hearing or other proceeding by a party shall not be a cause for a civil action or liability except for acts not in good faith, intentional misconduct; a knowing violation of law; transactions where there is an improper personal benefit; or malicious, wanton, or willful misconduct.

CONNECTICUT LEGISLATION

1991 Bills

Raised Bill 7374, An Act Concerning “SLAPP Suits,” requires that any one who, without probable cause, sues someone because he or she exercises the federal constitutional rights of freedom of speech, religion, and assembly must pay actual damages, punitive damages, and a reasonable attorney's fee. The bill limits the amount of punitive damages to the actual litigation expenses, less taxable costs, the defendant incurred.

The bill also makes anyone who testifies or submits books,

papers, or other evidence at a meeting of a public agency immune from civil liability for damage or injury resulting from the testimony or evidence unless (1) such testimony or evidence constitutes defamation of character, or (2) it is demonstrated by clear and convincing evidence that the person's primary purpose in testifying or submitting evidence was to cause unnecessary delay or otherwise impede the agency's consideration of the matter before it to the detriment of a party.

The committee held a public hearing on the bill but took no further action.

Under Proposed Bill No. 439, An Act Concerning “SLAPP Suits,” anyone who files a lawsuit primarily to intimidate, harass or retaliate against another person on account of such other person's participation in proceedings before a public agency is liable for actual damages, triple punitive damages, and attorney's fees. The committee took no action on this bill.

1993 Bills

The Judiciary Committee raised a bill (Raised Bill 1026) and held a public hearing. But it took no further action on it.

Under this bill, anyone who testifies or submits books, papers or other evidence at a meeting of a public agency is immune from civil liability for damage or injury resulting from such testimony or evidence unless (1) such testimony or evidence constitutes defamation of character, or (2) it is demonstrated by clear and convincing evidence that such person's primary purpose in testifying or submitting evidence was to cause unnecessary delay or otherwise impede the agency's consideration of the matter before it to the detriment of a party.

The bill also provides that any person who commences and prosecutes any civil action or complaint against someone, without probable cause, because that person exercised the constitutional rights of free speech, assembly, and religion must pay such other person actual damages, punitive damages, and a reasonable attorney's fee. The bill specifies that the amount of punitive damages may not be limited to the actual litigation expenses.

Proposed Bill 248 provides that (1) any person who testifies or presents evidence at a meeting of a public agency be immune from civil liability for damage or injury resulting from such testimony or evidence unless the testimony or evidence is defamatory or offered for the purpose of delay, and (2) damages, punitive damages, and attorneys' fees be assessed against any person who, without probable cause, sues a person who testifies or presents evidence. The committee took no action on the bill.

Proposed Bill 150 provides that people who bring “SLAPP” law suits be required to pay the defendant triple the amount of attorney's fees and other costs. The committee took no action on the bill.

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