SLAPPing Back: modified HB 2054 and the protections it affords

11949847161656372216sun_flower_ganson.svg.hiThe Public Speech Protection Act (“the Act”), as proposed in HB 2054, would strengthen Kansans’ right to freedom of expression while simultaneously protecting them against the threat of costly, groundless litigation.  HB 2054 would benefit defendants in cases that are considered to be Strategic Lawsuits Against Public Participation cases, or SLAPP. Such defendants are sued just because they have said or published something that someone doesn’t like.

The bill would establish a statutory mechanism to dismiss such cases during the early stages of the proceedings, thereby vindicating the defendant’s First Amendment rights and avoiding the expense of litigating a SLAPP to its conclusion. Further, as an additional deterrent, the bill provides that if the court concludes the defendant was the victim of a SLAPP, the plaintiff would be ordered to pay the defendant’s costs and attorney fees. SLAPP defendants are those who have spoken out against the plaintiff in some way, and the plaintiff has subsequently filed a SLAPP against the defendant claiming defamation or a related cause of action. The plaintiff typically is well funded and aims to use judicial proceedings to punish and silence the speaker.  In its original form, HB 2054 proposes meaningful protection for a SLAPP defendant, but the bill could be significantly strengthened.

Below is a suggested, modified version of HB 2054, adapted in large part from the Texas Citizens Participation Act (TCPA).  This modified version of HB 2054 seeks to ensure that SLAPP defendants have a fully effective statutory defense to such claims. This blog post seeks to explain how the proposed modification could strengthen the original bill. You may look up the original HB 2504 here, and my legislative testimony can be found here. I compliment Rep. Jan Pauls of Hutchinson for introducing the bill. More about her bill is here, and a write up of the legislative hearing from January 29, 2015 is here.

My suggested, modified version of HB 2054 includes: 1) A statement of purpose for the proposed statute, instead of a limiting statement of its scope that was in the original bill.  2) Broadened protection for SLAPP defendants, so that they are covered when communicating on matters of public concern generally, as well as matters related specifically to government actions and proceedings.  3) Partly for technical reasons, more specific treatment of appeals, while omitting a punitive damages provision and a plaintiff attorney’s “good faith” requirement that appeared in the original HB 2504.  4) Exemptions for certain categories of speech and publication that, for public policy reasons, need to be addressed under existing Kansas law rather than the proposed Act.

Consistent with the format of other related Kansas statutes such as the Kansas Open Records Act, my modification of HB 2054 contains a specific statement of purpose near the front of the bill: “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury In my modified version, only “constitutional rights” are protected, namely, the rights of association, free speech, and to petition, and these are defined.

Moreover, in the modified version, the right to free speech extends to matters of public concern. The modified HB 2054 defines “matter of public concern” as any issue related to the following: health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. This definition allows for a broad class of SLAPP defendants who would welcome the availability of this protection while ensuring that its application would be limited to instances where matters of public concern are implicated.

The modified version of HB 2054 also includes somewhat more specific language related to the appeal process, setting a time frame parallel to the criminal statute related to interlocutory appeals, K.S.A. 22-3603. Further, the case is expressly stayed until resolution of the appeal. The modified HB 2054 omits a punitive damages provision, as it was somewhat inconsistent with the punitive damages procedure set forth in K.S.A. 60-3701 et seq. The “good faith” requirement for filing a lawsuit has also been removed, as any attorney in the State of Kansas is required to meet that burden prior to filing any case.

In almost every other respect, the modified version is consistent with the original HB 2054.  In both the modified and original versions, the burden for making and proving assertions shifts back and forth between the parties. The burden-shifting analysis is similar to other comparable procedures, such as on a summary judgment motion in a discrimination case. The modified version retains the procedure in the original for the motion to strike, which is reasonable. The award of costs and fees to a SLAPP defendant also is retained, because it is consistent with the proposed statute’s purpose.  Further, existing Kansas law similarly provides for reasonable attorney fees for the prevailing party, such as in small claims appeals pursuant to K.S.A. 61-2709(a) and for refusal to comply with discovery pursuant to K.S.A. 60-237(a)(5).

The only significant addition proposed in my modified HB 2054 is a provision that expressly exempts certain kinds of litigants, such as criminal defendants, from the ability to rely on the defense mechanism set forth in this proposed statute. It stands to reason that an exemption should apply to any action that is brought in any criminal court in the state; otherwise, the proposed Act could be interpreted to allow defendants in criminal cases to invoke its provisions to challenge the charges against them and thwart the prosecution.  There is also an exemption for any claim brought under the insurance code or arising out of an insurance contract, as there is strong public policy in favor of resolving such cases according to the terms of the applicable contract.

But the most important exemption is known as the “commercial speech exemption.” Its purpose is to ensure that a company cannot invoke this proposed Act to dismiss a defamation claim filed against it by another company if the alleged defamatory statements were in the context of advertising. In other words, as long as an individual or entity is not a competing business, and the communication is not related to advertising or sale of goods sold by that individual, the proposed Act’s provisions protect that individual against a SLAPP plaintiff. In one case, a law firm was unable to move to dismiss under the TCPA when a medical provider sued the law firm for defamation related to firm advertising that specifically referenced the provider.

The following is my suggested, modified version of HB 2054.

Be it enacted by the Legislature of the State of Kansas:

K.S.A. XX-1001. Title of act. K.S.A. XX-1001 through K.S.A. XX-1010 shall be known and may be cited as the public speech protection act.

K.S.A. XX-1002. Statement of purpose. The purpose of this act is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

K.S.A. XX-1003. Definitions. (a) As used in the public speech protection act:

(1) “Claim” means any lawsuit, cause of action, claim, cross-claim, counterclaim or other judicial pleading or filing requesting relief.

(2)  “Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.

(3)  “Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(4)  “Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(5)  “Exercise of the right to petition” means any of the following:

(A)  a communication in or pertaining to:

(i)  a judicial proceeding;

(ii)  an official proceeding, other than a judicial proceeding, to administer the law;

(iii)  an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv)  a legislative proceeding, including a proceeding of a legislative committee;

(v)  a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi)  a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii)  a proceeding of the governing body of any political subdivision of this state;

(viii)  a report of or debate and statements made in a proceeding described by Subsection (iii), (iv), (v), (vi), or (vii); or

(ix)  a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B)  a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C)  a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D)  a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E)  any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

(6)  “Government proceeding” means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.

(7)  “Matter of public concern” includes an issue related to:

(A)  health or safety;

(B)  environmental, economic, or community well-being;

(C)  the government;

(D)  a public official or public figure; or

(E)  a good, product, or service in the marketplace.

(8) “Moving party” means any person on whose behalf the motion to strike as set forth in K.S.A. XX-1004 is filed seeking to strike a claim.

(9)  “Official proceeding” means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.

(10)  “Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person’s duties:

(A)  an officer, employee, or agent of government;

(B)  a juror;

(C)  an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;

(D)  an attorney or notary public when participating in the performance of a governmental function; or

(E)  a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

K.S.A. XX-1004. Motion to strike. (a) A party may bring a motion to strike to dismiss the claim if a claim is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association. A party bringing the motion to strike has the initial burden of making a prima facie case showing the claim against which the motion is based concerns a party’s exercise of the right of free speech, right to petition, or right of association. If the moving party meets the burden, the burden shifts to the responding party to establish a likelihood of prevailing on the claim by presenting substantial competent evidence to support a prima facie case. If the responding party meets the burden, the court shall deny the motion. In making its determination, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. If the court determines the responding party established a likelihood of prevailing on the claim: (1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and (2) the determination does not affect the burden or standard of proof in the proceeding.

(b)  The motion to strike made under subsection (a) may be filed within 60 days of the service of the most recent complaint, or, in the court’s discretion, at any later time upon terms it deems proper. A hearing shall be held on the motion not more than 30 days after the service of the motion.

(c)  On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

K.S.A. XX-1005. Discovery stayed. All discovery, motions or other pending hearings shall be stayed upon the filing of the motion to strike. The stay of discovery shall remain in effect until the entry of the order ruling on the motion. Notwithstanding the say imposed by this subsection, the court, on motion and for good cause shown, may order that specified discovery, motions or other pending hearings be conducted.

K.S.A. XX-1006. Appeal. The movant in a motion to strike has the right: (1) To petition for a writ of mandamus if the trial court fails to rule on the motion in an expedited fashion; or (2) to file an interlocutory appeal from a trial court order denying the motion to strike if notice of appeal is filed within 14 days after entry of such order. In either event, further proceedings in the trial court shall be stayed pending determination of the appeal.

K.S.A. XX-1007. Damages and costs. (a) The court shall award the defending party, upon a determination that the moving party has prevailed on its motion to strike, without regard to any limits under state law: (1) costs of litigation and reasonable attorney fees; and (2) such additional relief, including sanctions upon the responding party and its attorneys and law firms, as the court determines necessary to deter repetition of the conduct by others similarly situated. If the court finds that the motion to strike is frivolous or solely intended to cause delay, the court shall award to the responding party reasonable attorney fees and costs related to the motion.

K.S.A. XX-1008. Exemptions. (a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.

(b) This chapter does not apply to a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

(c) This chapter does not apply to a claim brought under the Insurance Code or arising out of an insurance contract.

K.S.A. XX-1009. Government contractors. In any case filed by a government contractor that is found by a court to be in violation of this section, the court shall provide for its ruling to be sent to the head of the relevant governmental entity doing business with the contractor.

K.S.A. XX-1010. Construction. The provisions of the public speech protection act shall be applied and construed liberally to effectuate its general purposes. If any provision of the public speech protection act or its application is held invalid, the invalidity does not affect other provisions or applications that can be given effect without the invalid provision or application.