Arizona Orange
Subgrades  
Covered Speech: D-
Anti-SLAPP Procedures: C-
Subscores  
Covered Speech: 15 out of 100 points
Anti-SLAPP Procedures: 57 out of 100 points
Detailed Scoring on Anti-SLAPP Procedures  
Suspension of Court Proceedings Upon an Anti-SLAPP Motion: 5 of 20 points
Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: 12 of 12 points
Right to an Immediate Appeal: 0 of 25 points
Award of Costs and Attorney Fees: 40 of 40 points
Expansive Statutory Interpretation Instruction to Courts: 0 of 3 points

How to Improve Arizona’s Score

The most important part of anti-SLAPP law is the scope of speech that the statute covers. After all, strong statutory procedural protections are of no help to a speaker if the scope of the statute excludes the speech at issue.

The fundamental flaw in Arizona’s anti-SLAPP statute is it covers too little speech. If Arizona simply expanded the scope of its statute to cover the same kinds of speech recommended by the Uniform Law Commission’s model Act, the overall grade would rise to B+.

The Uniform Law Commission’s model law protects any speech about a matter of public importance in any forum. The model is described at some length in the full report and is available here.

Arizona should also consider including a right to an “interlocutory” appeal as part of its law. Speaking generally, that is a request to a higher court for it to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain, so this right of appeal is an important feature of an anti-SLAPP law. Without it, a defendant who loses an anti-SLAPP motion would be forced to continue to litigate the entire trial before the finding on the motion could ever be appealed.

As attorney Ken White has eloquently explained, the provision of a right of interlocutory appeal creates a strong protection for First Amendment liberties, because it “dramatically reduces the coercive effect of filing a lawsuit targeting speech.”

Finally, the Uniform Law Commission’s model law and several state statutes also suspend all court proceedings when an anti-SLAPP motion is filed; the statutes of most states with anti-SLAPP statutes suspend discovery once an anti-SLAPP motion is filed.

Unfortunately, Arizona’s law does not automatically suspend proceedings or discovery upon the filing of an anti-SLAPP motion. This failure drives up the cost of litigation to defend against a SLAPP. The state can improve its protections for free speech by adding this provision to the law.

State Anti-SLAPP Statute

Arizona’s anti-SLAPP statute[1] covers two classes of statements: (1) statements that are “made as part of an initiative, referendum, or recall effort,”[2] and (2) statements that are “made before or submitted to a legislative or executive body or any other governmental proceeding,” “made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding,” and “made for the purpose of influencing a governmental action, decision, or result.” Its coverage is therefore confined to speech that pertains to an issue being considered in certain future elections or by a government body. Although the filing of an anti-SLAPP motion does not appear to suspend discovery or other aspects of litigation, the statute requires the court to give “calendar preference” to the action and to conduct an expedited hearing. An Arizona court shall grant a motion to dismiss under the statute unless the respondent shows that the movant’s statements “did not contain any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual compensable injury to the responding party.” The statute does not appear to provide for interlocutory appeal of an order granting or denying an anti-SLAPP motion. A court must award costs and attorney fees to the prevailing movant on an anti-SLAPP motion; conversely, if the court finds that the motion is frivolous or solely intended to delay, it must award costs and attorney fees to the respondent.

[1] Ariz. Rev. Stat. Ann. §§ 12-751, 12-752.

[2] However, Arizona case law suggests that statements made that allegedly violate state election law are not protected by the state’s anti-SLAPP statute. Tennenbaum v. Ariz. City Sanitary Dist., 799 F. Supp. 2d 1083 (D. Ariz. 2011).

Dan Greenberg & David Keating

https://www.ifs.org/author/dgreenburg/

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