Washington Supreme Court strikes down anti-SLAPP law as unconstitutional

In a disappointing ruling today, the Washington Supreme Court struck down the state’s anti-SLAPP law in its entirety, holding that it violates the right to trial by jury under the Washington Constitution.

The decision marks the first time an anti-SLAPP law has been held unconstitutional. The Washington law, RCW 4.24.525, required judges to weigh the disputed facts of cases and dismiss them if they determined that the plaintiff could not show by clear and convincing evidence a probability of prevailing on the claim. The Washington Supreme Court held that it must be juries, not judges, who make those determinations of fact.

The law’s invalidation removes a key protection in the state for members of the media and other speakers who are often targeted by plaintiffs who bring meritless suits with the intention of silencing valuable speech and public participation. By allowing such defendants to quickly dismiss these suits, the law protected their ability to speak without fear of harassing litigation.

The wide latitude that judges have to dismiss potentially nonfrivolous claims is what led the high court to find that the right of trial by jury was jeopardized.

“RCW 4.24.525(4)(b) creates a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial,” the Court wrote. “Such a procedure invades the jury’s essential role of deciding debatable questions of fact.”

Finding that the section of the law allowing for swift dismissal of suits was not severable from the remainder of RCW 4.24.525, the Court struck down the entire law.

“The legislature may enact anti-SLAPP laws to prevent vexatious litigants from abusing the judicial process by filing frivolous lawsuits for improper purposes,” the Court concluded. “But the constitutional conundrum that RCW 4.24.525 creates is that it seeks to protect one group of citizen’s constitutional rights of expression and petition — by cutting off another group’s constitutional rights of petition and jury trial.”

The defendants had argued that anti-SLAPP laws are necessary to preserve the exercise of free speech rights because suits targeting actions “involving public participation and petition” effectively have a chilling effect on those important activities by embroiling speakers in protracted, meritless litigation.

“Naturally, we’re disappointed,” said Bruce Johnson of the firm Davis Wright Tremaine LLP, which represented the defendants. “The 2010 law was designed to enable ordinary citizens to participate in discussions of public matters without fear of expensive and debilitating retaliatory litigation. That risk has returned, unfortunately.”

The Reporters Committee, joined by twenty-nine other media parties, submitted an amicus brief in support of the defendants.

Twenty-eight states, the District of Columbia, and the U.S. territory of Guam have enacted some form of anti-SLAPP law. Similarly to many of those statutes, the Washington law allowed defendants to file a special motion to strike claims based on statements of public concern and provided for a stay of discovery while the motion was decided and penalties for losing plaintiffs that included attorneys’ fees and $10,000 in damages.