Anti-SLAPP motions: striking lawsuits that target protected speech

An anti-SLAPP motion (strategic lawsuit against public participation) is a fast-track procedural device for ending lawsuits that target petitioning activity, speech on public issues, or other constitutionally protected expression. It is one of the most powerful procedural defenses in the legal toolkit when it applies: it freezes discovery, shifts the burden to the plaintiff at the pleading stage, supports an interlocutory appeal, and — when granted — awards attorney fees to the moving party.

This guide walks through the doctrine as it operates across the major anti-SLAPP jurisdictions. The statutes vary significantly, but the structural framework is similar across most: a two-step burden-shifting analysis, a discovery stay during pendency, fee-shifting on success, and immediate appellate review of the ruling. The motion is most effective when the suit obviously targets protected conduct, but it can succeed in mixed cases where the protected component is the gravamen.

What anti-SLAPP statutes actually do

Anti-SLAPP statutes respond to a specific pathology: well-funded plaintiffs filing meritless lawsuits to punish or silence critics, activists, journalists, and ordinary citizens who exercise their First Amendment rights. The lawsuits do not need to win to inflict harm; defending them is itself the punishment. The statutes give the defendant a way to end the lawsuit quickly, with fees shifted to the plaintiff.

The first generation of anti-SLAPP laws emerged in the 1990s. California's statute, Cal. Civ. Proc. Code § 425.16, is the most influential and most extensively litigated. Texas (TCPA), Washington, Oregon, Nevada, the District of Columbia, and others have adopted similar frameworks; the Uniform Public Expression Protection Act has been adopted in several states more recently. Some jurisdictions have no anti-SLAPP statute at all; some have weak versions limited to specific contexts.

The motion is filed early — typically within 60 days of service of the complaint, though the deadline varies by jurisdiction. It is heard on an expedited timeline. It freezes most discovery, which protects the defendant from being pressured into settlement by the cost of responding to discovery while the motion is pending.

Step one: protected activity

The first step is for the defendant to establish that the lawsuit arises from protected activity. The categories vary by statute but typically include:

Statements made in connection with an issue under consideration in a legislative, executive, or judicial proceeding. This covers court filings, agency complaints, lobbying communications, and many other contexts where the speech is part of formal petitioning activity.

Statements made in a public forum about an issue of public interest. This covers online reviews, social media commentary on public issues, op-eds, and similar.

Other conduct in furtherance of constitutional rights of petition or free speech in connection with public issues. The catch-all that picks up activity not fitting cleanly into the other categories.

The court asks whether the act giving rise to the plaintiff's claim falls within one of the statutory categories. Baral v. Schnitt, 1 Cal. 5th 376 (2016), confirmed that in mixed cases, the court analyzes each cause of action and each allegation: if the protected activity is the "supplying gravamen" of the claim, the motion can reach that claim.

The motion should be specific about the protected conduct. Quote the complaint's allegations. Identify which paragraph alleges which act. Tie each act to the statutory category. A motion that gestures at "free speech" without anchoring the analysis in specific complaint allegations and specific statutory categories invites denial at step one.

Step two: probability of prevailing

Once the defendant clears step one, the burden shifts to the plaintiff to show a probability of prevailing on the claim. The plaintiff has to present evidence — not just pleadings — that establishes a prima facie case for each element of the claim.

This is the unusual feature of anti-SLAPP procedure: at the pleading stage, the plaintiff has to do summary-judgment work. The plaintiff must offer admissible evidence, supported by declaration, that the claim has merit. Speculation, hearsay, and unsupported allegations do not satisfy the burden.

The court evaluates the evidence in the light most favorable to the plaintiff — like summary judgment in reverse — and asks whether the plaintiff has shown a prima facie case. The plaintiff need not win the motion outright, only show that the claim is not so devoid of evidentiary support that it should be struck.

For a defamation case, the plaintiff needs evidence of a false statement of fact, made with the requisite fault (negligence or actual malice), causing harm. For a tortious-interference case, evidence of intentional interference with a valid expectancy. Each claim's elements have to be marshaled with evidence.

The motion can win at step two even when step one is clear, because most SLAPP suits are weak on the merits. The motion brief should identify each element of each claim, explain what evidence the plaintiff would need to support each element, and predict where the evidence will fall short.

The discovery stay

Anti-SLAPP statutes generally stay discovery from the moment the motion is filed until the motion is decided. This is the practical feature that gives the motion its bite: the plaintiff cannot use discovery to harass, to drive up cost, or to develop evidence to defeat the motion.

The stay has exceptions. Most statutes permit the plaintiff to apply for specified discovery on a showing of good cause — typically, that the discovery is necessary to oppose the motion and cannot be obtained elsewhere. Courts are usually skeptical of such applications. The plaintiff who comes to court without evidence of probability of prevailing is unlikely to manufacture it through narrow targeted discovery during the stay.

The motion should request the stay explicitly. Some statutes make it automatic; others require the court to enter it. The defendant should also resist any plaintiff effort to lift the stay, framing the application as an admission that the plaintiff lacks the evidence the second step requires.

Fee-shifting

Anti-SLAPP statutes generally award attorney fees to the defendant who wins the motion. The fee award is mandatory in most jurisdictions; the court has discretion only over the amount, not the entitlement.

Fee awards in successful anti-SLAPP cases can be substantial. California courts have routinely awarded six-figure and sometimes seven-figure fee awards in complex cases. The fee-shifting mechanism is what turns the anti-SLAPP motion into a deterrent: a plaintiff who files a SLAPP suit and loses the motion pays the defendant's legal cost.

The motion should preserve the fee request from the outset. Most statutes require a separate motion or application for fees after the merits ruling, but the motion brief should note the request and the statutory entitlement. A defendant who wins on the merits but loses on fees because of procedural error has wasted the most valuable feature of the statute.

Interlocutory appeal

Anti-SLAPP rulings are immediately appealable. The defendant who loses the motion can appeal before final judgment; the plaintiff who loses on the motion has no case left to appeal.

The interlocutory appeal is meaningful because anti-SLAPP appeals usually carry a stay of trial-court proceedings. The case sits while the appellate court reviews. For a plaintiff bringing a meritless SLAPP, this is another deterrent: the case is frozen for the months or years the appeal takes.

Standard of review on appeal is usually de novo. Both the protected-activity determination and the probability-of-prevailing determination are reviewed without deference. This is favorable for the defendant who lost in the trial court but had a clean protected-activity case.

Federal court and the Erie question

Whether state anti-SLAPP statutes apply in federal court has divided the circuits. The Ninth Circuit applies California's anti-SLAPP statute in federal diversity cases. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). Other circuits — including the Second, Fifth, and D.C. Circuits — have rejected this, holding that the state statutes are procedural in nature and conflict with the Federal Rules of Civil Procedure.

The motion in federal court should identify the controlling circuit law. In a circuit that applies the state statute, the analysis follows the state framework. In a circuit that does not, the defendant has to rely on Rule 12(b)(6), Rule 12(c), or Rule 56, with no fee-shifting and no discovery stay.

For state-law claims removed to federal court in jurisdictions that apply anti-SLAPP, the procedural mechanics may be modified to fit the federal rules. The motion may need to be styled as a motion to strike or for summary judgment, depending on local practice. The brief should track the local-circuit case law carefully.

How to structure the motion

The motion has a natural three-section structure.

Step one: identify the protected activity. Quote the complaint paragraph-by-paragraph. Tie each allegation to the relevant statutory category. Cite the controlling state-court authority on each category. Explain why each cause of action arises from the identified activity.

Step two: explain why the plaintiff cannot show probability of prevailing. Walk each element of each cause of action. Identify the evidence the plaintiff would need. Explain what evidence is absent and why. Anticipate the declarations the plaintiff is likely to file and explain why they are insufficient.

Request the stay, the merits ruling, and the fee award. Each is a separate request and each should be made explicitly.

Common mistakes

Missing the filing deadline. Anti-SLAPP statutes have short windows. California's is 60 days from service of the complaint, subject to court extension. A motion filed late may be denied without reaching the merits.

Conflating the two steps. Step one is about the activity; step two is about the evidence. A motion that argues at step one that the plaintiff lacks evidence is making the wrong argument at the wrong time. Clean separation between the steps reads as competent.

Underestimating the gravamen analysis. In mixed cases, the court considers which conduct is the supplying gravamen of the claim. A motion that points to incidental allegations of protected conduct without explaining why they constitute the gravamen will not survive step one.

Failing to preserve fees. The fee request is the most valuable feature of the statute. A motion that wins on the merits but neglects the fee procedure has missed the point.

Ignoring jurisdiction. Not every jurisdiction has a robust anti-SLAPP statute. The motion has to be grounded in the statute that actually applies. A motion that invokes California's statute in a state without a comparable provision will fail.

The bottom line

Anti-SLAPP motions are a powerful early-stage defense for cases that target protected petitioning or speech activity. The two-step framework, the discovery stay, the fee-shifting, and the interlocutory appeal combine to give the defendant a procedural advantage that almost no other motion provides. The motion is most effective when the protected conduct is the obvious gravamen, and when the defense brief carefully anchors the analysis in the statute's specific categories and the controlling state-court precedent.

When granted, the case ends and the fee shift compensates the defendant. When denied, the interlocutory appeal preserves the issue for higher review. The motion is not a fit for every case, but where it fits, it is the strongest defense available.