Missouri Orange
Subgrades  
Covered Speech: D-
Anti-SLAPP Procedures: C
Subscores  
Covered Speech: 10 out of 100 points
Anti-SLAPP Procedures: 63 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: 0 of 12 points
Right to an Immediate Appeal: 5 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 Missouri’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 Missouri’s anti-SLAPP statute is it covers too little speech. If Missouri 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.

Missouri’s law could also be significantly improved if it included a clear right to an “interlocutory” appeal for an anti-
SLAPP motion. Speaking generally, an interlocutory appeal 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 most anti-SLAPP laws put the burden of proof on the plaintiff to show a prima facie case. However, Missouri’s law does not contain this feature. That is a serious deficiency in the statute.

State Anti-SLAPP Statute

Missouri’s anti-SLAPP statute[1] protects conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding or any other meeting of a decision-making government body of the state, or any political subdivision of the state. Missouri case law suggests that an anti-SLAPP motion will fail unless it is shown that the original action was retaliatory.[2] Discovery is suspended when an anti-SLAPP motion is filed. Unlike many anti-SLAPP statutes, the Missouri statute does not shift the burden of proof on an anti-SLAPP motion to the respondent at any point before the court must decide whether to grant or deny the motion. Any party has the right to an expedited appeal of an order based on an anti-SLAPP motion, as well as the right to appeal a court’s failure to rule on the motion on an expedited basis; however, Missouri case law appears to prevent interlocutory appeal of the denial of an anti-SLAPP motion.[3] The court must award costs and attorney fees related to the action to the prevailing movant on an anti-SLAPP motion. Conversely, if the court finds the motion to be frivolous or solely intended to cause unnecessary delay, then it must award costs and attorney fees related to the motion to the prevailing respondent.

[1] Mo. Rev. Stat. § 537.528.

[2] Moschenross v. St. Louis County, 188 S.W.3d 13 (Mo. Ct. App. Jan. 17, 2006).

[3] Cedar Green Land Acquisition, L.L.C. v. Baker, 212 S.W.3d 225 (Mo. Ct. App. Jan. 30, 2007).

Dan Greenberg & David Keating

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

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