New Mexico Orange
Subgrades  
Covered Speech: D-
Anti-SLAPP Procedures: B-
Subscores  
Covered Speech: 10 out of 100 points
Anti-SLAPP Procedures: 76 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: 6 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: 0 of 3 points

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

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, New Mexico’s statute 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.

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, New Mexico’s law does not contain this feature. That is a serious deficiency in the statute.

State Anti-SLAPP Statute

New Mexico’s anti-SLAPP statute[1] protects statements made in connection with a meeting established and held by a government entity. The statute does not provide for the stay of discovery in the event of an anti-SLAPP filing, although the court must consider the motion “on a priority or expedited basis.” Unlike many anti-SLAPP statutes, the New Mexico 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 interlocutory appeal on an anti-SLAPP motion when it is granted or denied, as well as the right to appeal a court’s failure to rule on the motion on an expedited basis. 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] N.M. Stat. § 38-2-9.1 through § 38-2-9.2.

Dan Greenberg & David Keating

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

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