Hawaii Orange

NOTE: On June 17, 2022 Hawaii adopted a new and improved anti-SLAPP law. Read more here.

Subgrades  
Covered Speech: D-
Anti-SLAPP Procedures: A
Subscores  
Covered Speech: 10 out of 100 points
Anti-SLAPP Procedures: 98 out of 100 points
Detailed Scoring on Anti-SLAPP Procedures  
Suspension of Court Proceedings Upon an Anti-SLAPP Motion: 18 of 20 points
Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: 12 of 12 points
Right to an Immediate Appeal: 25 of 25 points
Award of Costs and Attorney Fees: 40 of 40 points
Expansive Statutory Interpretation Instruction to Courts: 3 of 3 points

How to Improve Hawaii’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 Hawaii’s anti-SLAPP statute is it covers too little speech. If Hawaii 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 A+.

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.

State Anti-SLAPP Statute

Hawaii’s anti-SLAPP statute,[1] the Citizen Participation in Government Act, is relatively narrow in scope, as it only protects statements provided to a government body during a government proceeding. Discovery is suspended once an anti-SLAPP motion is filed. To prevail against an anti-SLAPP motion, the respondent must establish that, more likely than not, the claim is not covered by the anti-SLAPP statute. If the anti-SLAPP motion is denied, the movant has a right to an interlocutory appeal on the motion. The court must award damages to the successful anti-SLAPP movant, including (1) the greater of actual damages or $5,000, (2) costs of suit, including expert fees and attorney fees, and (3) additional damages sufficient to deter repetition of the conduct and comparable conduct. In general, the anti-SLAPP statute instructs courts that interpret its language to do so “liberally” – an instruction presumably designed to foil readings of the statute in a cramped or narrow way that would exclude marginal cases.

[1] Haw. Rev. Stat. § 634F-1 through § 634F-4.

Dan Greenberg & David Keating

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

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