Bill Text

George W. Pring and Penelope Canan, in their 1996 book SLAPPs: Getting Sued for Speaking Out, cite the following as essential for inclusion in a good anti-SLAPP bill:

1. Communications: It must cover all public advocacy and communications to government, whether direct or indirect and whether in the form of testimony, letters, reports of crime, peaceful demonstrations, or petitions. 

2. Forums: It must cover all government bodies and agents, whether federal, state, or local, and whether legislative, executive, judicial, or the electorate.

3. Prevention and cure: It must set out an effective early review for filed SLAPPs, shifting the burden of proof to the filer and, in so doing, serving a clear warning against the future filing of such suits.”

In specific legal terms, a bill should contain:

  • An expedited process for a motion to dismiss 
  • A motion to stay all discovery until a resolution of the anti-SLAPP motion or a stay which could be modified by a show of good cause for seeking discovery
  • An attorney fee provision for the prevailing defendant
  • In the case of a denial of an anti-SLAPP motion, the right to an immediate appeal
The following language was developed by George W. Pring and Penelope Canan (both professors at the University of Denver) and the Institute they founded, the University of Denver Political Litigation Project. It uses the elements of the California, New York, and Minnesota bills and incorporates federal law and a Supreme Court decision. 

[Reprinted from SLAPPs: Getting Sued for Speaking Out (1996)]

SECTION 1. SHORT TITLE.

This Act may be cited as the “Citizen Participation in Government Act of 200_.” 

SECTION 2. LEGISLATIVE FINDINGS AND DECLARATION OF PURPOSES.

(a) FINDINGS. The Legislature finds and declares that
(1) the framers of our Constitutions, recognizing citizen participation in government as an inalienable right essential to the survival of democracy, secured its protection through the right to petition the government for redress of grievances in the First Amendment to the U.S. Constitution and Section __ of the Constitution of the State;
(2) the communications, information, opinions, reports, testimony, claims, and arguments provided by citizens to their government are essential to wise government decisions and public policy, the public health, safety, and welfare, effective law enforcement, the efficient operation of government programs, the credibility and trust afforded government, and the continuation of America’s republican form of government through representative democracy;
(3) civil lawsuits and counterclaims, often claiming millions of dollars, have been and are being filed against thousands of citizens, businesses, and organizations based on their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating with government bodies, officials, or employees or the electorate; 
(4) such lawsuits, called “Strategic Lawsuits Against Public Participation” or “SLAPPs,” are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their productive activities;
(5) the number of SLAPPs has increased significantly over the past 30 years;
(6) SLAPPs are an abuse of the judicial process; they are used to censor, chill, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs, and controlling SLAPPs will make a major contribution to lawsuit reform;
(7) the threat of financial liability, litigation costs, destruction of one’s business, loss of one’s home, and other personal losses from groundless lawsuits seriously affects government, commerce, and individual rights by significantly diminishing public participation in government, in public issues, and in voluntary service;
(8) while courts have recognized and discouraged SLAPPs, protection of these important has not been uniform or comprehensive;
(9) while some citizen communications to government inevitably will be incorrect, unsound, self-interested, or not in good faith, it is essential in our democracy that the constitutional rights of citizens to participate fully in the process of government be uniformly, consistently and comprehensively protected and encouraged. 
(b) PURPOSES. The purpose of this Act are
(1) to protect and encourage citizen participation in government to the maximum extent permitted by law;
(2) to create a more equitable balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to petition, speak out, associate, and otherwise participate in their governments;
(3) to support the operations of and assure the continuation of representative government in America, including the protection and regulation of public health, safety, and welfare by protecting public participation in government programs, public policy decisions, and other actions;
(4) to establish a balanced, uniform, comprehensive process for speedy adjudication of SLAPPs as a major contribution to lawsuit reform;
(5) to provide for attorney fees, costs, and damages for persons whose citizen participation rights have been violated by the filing of a SLAPP against them.

SECTION 3. IMMUNITY.
 Acts in furtherance of the constitutional right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating in the processes of government, shall be immune from civil liability, regardless of intent or purpose, except where not aimed at procuring any governmental or electoral action, result, or outcome. 

SECTION 4. APPLICABILITY.
 This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act of the moving party in furtherance of the moving party’s rights as described in Section 3. 

SECTION 5. REQUIRED PROCEDURES. 
 On the filing of any motion as described in Section 4
(a) the motion shall be treated as one for summary judgment:
(1) the trial court shall use a time period appropriate to preferred or expedited motions; and
(2) the moving party shall have a right expedited appeal form a trial court order denying such a motion or from a trial court failure to rule on such a motion in expedited fashion;
(b) discovery shall be suspended, pending decision on the motion and appeals;
(c) the responding party shall have the burden of proof, of going forward with the evidence, and of persuasion on the motion;
(d) the court shall make its determination based upon the facts contained in the pleadings and affidavits filed;
(e) the court shall grant the motion and dismiss the judicial claim, unless the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability by Section 3;
(f) any government body to which the moving party’s acts were directed or the Attorney General may intervene to defend or otherwise support the moving party in the SLAPP;
(g) the court shall award a moving party who is dismissed, without regard to any limits under state law:
(1) costs of litigation (including reasonable attorney and expert witness fees) incurred in connection with the motion; and
(2) such additional sanctions upon the responding party, its attorneys, or law firms as it determines will be sufficient to deter repetition of such conduct and comparable conduct by others similarly situated;
(h) a person damaged or injured by reason of a claim filed in violation of their rights under Section 3 may seek relief in the form of a claim for actual or compensatory damages, as well as punitive damages, attorney fees, and costs, from the person or persons responsible.

SECTION 6. DEFINITIONS.
 As used in this Act
(a) “government” includes a branch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, or subdivision of a state or other public authority, including the electorate;
(b) “state” includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
(c) “person” includes any individual, corporation, association, organization, partnership, two or more persons having a joint or common interest, or other legal entity;
(d) “judicial claim” or “claim” includes any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing requesting relief;
(e) “motion” includes any motion to dismiss, for summary judgment, for judgment on the pleadings, to strike, demurrer, or any other judicial pleading filed to dispose of a judicial claim;
(f) “moving party” means any person on whose behalf the motion described in Section 4 is filed seeking dismissal of the judicial claim; and 
(g) “responding party” means any person against whom the motion described in Section 4 is filed. 

SECTION 7. GENERAL PROVISIONS.
(a) RELATIONSHIP TO OTHER LAWS. Nothing in this Act shall limit or preclude any rights the moving party may have under any other constitutional, statutory, case or common law, or rule provisions.
(b) RULE OF CONSTRUCTION. This Act shall be construed liberally to effectuate its purposes and intent fully.
(c) SEVERABILITY OF PROVISIONS. If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the application of such provision to other persons or circumstances and the remainder of this act shall not be affected thereby. 
(d) EFFECTIVE DATE. This Act shall take effect immediately. 
 
 
 

 


State Environmental Resource Center - 106 East Doty Street, Suite 200
Madison, WI 53703 - Phone: 608/252-9800 - Email: [email protected]