People say that no good deed goes unpunished.  Sometimes in our litigious society, this proverb becomes a reality.  Fortunately, Indiana has an obscure law that protects citizens who are dragged into litigation for legitimately exercising their first amendment rights of freedom of speech and freedom of petition.  Such protections cover a wide range of activities, including teachers and physicians who report suspected child abuse, witnesses who report suspected criminal activity, a whistle blower targeted by his former employer, or an aggrieved citizen who writes an editorial criticizing a corporation.  These protections are covered under Indiana’s Anti-SLAPP Act (“ASA”; Ind. Code § 34-7-7-1, et seq.).    

SLAPP is an acronym for Strategic Lawsuit Against Public Participation.   A SLAPP action is an abusive lawsuit that seeks to punish or discourage a citizen from speaking out on an issue of public interest.  Such lawsuits are often not initiated to seek justice, but are instead designed to force a defendant into expending large sums of money in defending itself in court.  In the context of the ASA, many of the terms are given broad definitions and application.  For instance, the ASA protects both individuals and corporations.  The ASA covers not only verbal conduct (i.e. traditional speech), but also petitioning activity (i.e. filing complaints with a governmental agency).  If a person is sued for legitimately exercising their rights (i.e. a SLAPP action), that person can seek protection under the ASA.    

There are generally three components of a successful ASA defense.  First, the action must be based on protected activity (i.e. speech or petitioning activity that is connected to a public issue or issue of public interest).  Private matters are typically not protected under the ASA.  Second, the speech at issue must have been made in good faith with a reasonable basis in law and fact.  For instance, knowingly and falsely accusing a spouse of child abuse during child custody proceedings is not protected activity.  Third, the action must be otherwise lawful.  Filing a false police report (which is unlawful) is not protected activity.  

The ASA also has several key components that make it an attractive litigation tool.  First, upon filing a motion to dismiss based on the ASA, all discovery (other than discovery related to the ASA motion) is automatically put on hold pending a ruling on the ASA motion.  This provision protects defendants in SLAPP actions from enduring further abusive (and often expensive) discovery tactics.  Also, the court must rule on the ASA motion within 180 days. This requirement ensures the litigation process is relatively swift.  Finally, a party who prevails on an ASA motion is entitled to reimbursement of all attorneys’ fees and expenses.  This provision of the ASA is non-discretionary and expansive.  It includes all legal fees, appellate fees, and collection fees.  This provision is designed to discourage SLAPP actions and to make whole the victim of such actions.  

In conclusion, Indiana’s ASA is a great tool for protecting defendants who have been wrongly sued for exercising certain constitutionally protected rights.  However, the person/entity bringing the SLAPP action rarely sees the claim as an abusive lawsuit.  Instead, the person bringing the SLAPP actions sees itself as the victim.  For example, SLAPP plaintiffs may include parents who believe they were wrongfully accused of child abuse or corporations that believe they were wrongfully defamed in the media.  The courts must sort out the legitimate claims from the SLAPP actions.  These difficult cases often remind us that legitimacy is sometimes in the eye of the beholder.  

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Posted on Nov. 15 2016 by Courtney David Mills