Maine Orange
Subgrades  
Covered Speech: D
Anti-SLAPP Procedures: D+
Subscores  
Covered Speech: 30 out of 100 points
Anti-SLAPP Procedures: 40 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: 0 of 25 points
Award of Costs and Attorney Fees: 10 of 40 points
Expansive Statutory Interpretation Instruction to Courts: 0 of 3 points

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

Maine should also consider two other improvements. First should be 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.”

Second, strong anti-SLAPP laws impose notable costs on plaintiffs with weak or frivolous cases. One important feature of strong anti-SLAPP statutes is that they make losing plaintiffs liable for reasonable attorney fees and court costs originally borne by the speaker.

Unfortunately, Maine gives the court the option, not the requirement, of awarding reasonable attorney fees and court costs to prevailing defendants.

A mandatory fee-shifting provision would make it more likely that a defendant with limited financial resources who faces a SLAPP will be represented by an attorney. The prospect of fee-shifting encourages attorneys to provide such defendants with representation – especially when defendants face weak or frivolous claims.

The best anti-SLAPP laws enable defendants to recoup the money they spent on legal costs. Requiring payment of reasonable attorney fees and court costs to prevailing speakers would provide deterrent effects against strategic lawsuits of dubious merit.

State Anti-SLAPP Statute

Maine’s anti-SLAPP statute[1] protects “any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.” Although discovery is stayed once an anti-SLAPP motion is filed, a court may nonetheless order specified discovery to be conducted if good cause is shown. To prevail against an anti-SLAPP motion, the respondent must show that the movant’s expressive actions were “devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party.” The statute does not provide for interlocutory appeal of an order granting or denying an anti-SLAPP motion. If the anti-SLAPP motion is granted, the court may award the movant costs and attorney fees.

[1] Me. Rev. Stat. Ann. tit. 14, § 556.

Dan Greenberg & David Keating

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

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