Governmental Entities Cannot Assert Anti-SLAPP Defense Unless Lawsuit Based on its Own Communicative Activity

 In Laws

A SLAPP suit is one that is designed to discourage a speaker from voicing his or her opinion.

Washington’s Anti-SLAPP laws are aimed at discouraging these types of claims, and are found at RCW 4.24.500-525.

In 2010, Washington’s Anti-SLAPP protection was greatly expanded to include “any claim, however characterized, that is based on an action involving public participation and petition.” It also established procedures for bringing and resolving a motion to strike SLAPP suits and claims, as well as for obtaining damages, costs, and fees. See generally RCW 4.24.525. Previously, anti-SLAPP claims were limited to whistleblowers who were being sued for making reports to governmental agencies.

As a result of the 2010 amendments, anti-SLAPP cases proliferated in Washington, often in unseemly circumstances. Rightly so, many have begun to question the vast scope and constitutionality of the 2010 amendments. Three cases, Dillon v. Seattle Deposition Reporters, LLC, et al., Davis v. Cox, and Akrie v. Grant, are currently pending before the Washington Supreme Court to decide, among other things, whether the amended anti-SLAPP law violates fundamental rights to petition the court and obtain a trial by jury. Another case, Henne v. City of Yakima (PDF), dealt with the law’s scope and was just decided.

Henne looked at whether the government could invoke an anti-SLAPP defense in an employment case that was based on coworker complaints and the city’s resulting internal investigations, which Henne, a police officer, alleged created a hostile work environment. Yakima’s anti-SLAPP motion asserted that, because Henne’s claims were based on coworker complaints and the city’s resulting internal investigations, the new, broader anti-SLAPP statute applied to those claims as protected speech.

The Court unanimously rejected the city’s SLAPP defense. Writing for the majority, Justice Gordon McCloud first noted that the purpose of the anti-SLAPP laws are “to prevent frivolous SLAPP suits from deterring individuals and entities from exercising their constitutional speech rights-that is, their communicative activity.” She then quickly identified the main problem with the city’s argument: “Yakima claimed the protection of the anti-SLAPP law because it received controversial communications from others; [But] Yakima made no communications of its own.” “Because Yakima is the government entity to which the speech at issue in this case was directed, and not the speaker, it cannot take advantage of RCW 4.24.525‘s anti-SLAPP protections for speakers.” The Court went on to more broadly explain that “a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes where the alleged SLAPP is not based on the government’s own communicative activity.”

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