TBA Law Blog


Posted by: Journal News on Aug 26, 2019

Journal Issue Date: Sep 2019

Journal Name: Vol 55 No 9

Tennessee recently adopted a Strategic Lawsuit Against Public Participation (“Anti-SLAPP”) statute to provide additional protections for certain fundamental constitutional rights. The Tennessee Public Participation Act (TPPA),1 sponsored by Sen. Steve Dickerson, R-Nashville, and Rep. Bob Ramsey, R-Maryville, was passed without opposition in the 111th General Assembly and signed into law by Gov. Bill Lee, effective July 1, 2019.

 

By Todd Hambidge, Robb Harvey, John P. Williams, Braden Boucek and Dan Haskell

The purpose of the TPPA is to “encourage and safeguard the constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury.”2 The TPPA provides “an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available[.]”3 The TPPA discourages and sanctions frivolous lawsuits and permits the early disposition of those cases before parties are forced to incur substantial litigation expenses. The Act had the support of a wide spectrum of organizations. With the TPPA, Tennessee joins more than 30 other states with anti-SLAPP statutes.

Although the TPPA is new to Tennessee, anti-SLAPP statutes are not a recent development, nor are the infringements of constitutional interests that these statutes are intended to remedy. States began enacting anti-SLAPP statutes in the 1980s in response to an increasing number of lawsuits that were filed for the purpose of discouraging the exercise of constitutional rights, often intended to silence speech in opposition to monied interests rather than to vindicate a plaintiff’s rights. Aside from silencing individuals, such lawsuits were — and continue to be — used to punish media outlets for doing the investigative work that we expect of them. The cost of defending such lawsuits can be prohibitive not only for individuals, but also bloggers, internet newspapers, and substantial media organizations, which must weigh the expenditure of defense costs against the substantial costs of developing, producing and distributing new content. Numerous cases recognize that the fear of lawsuits, even frivolous ones, creates a detrimental “chilling effect” on the exercise of First Amendment rights (and rights protected by the Tennessee Constitution), which must be avoided.4

While Tennessee has had a limited anti-SLAPP statute since 1997, that statute applies only where, “in connection with a public or government issue, [any person] communicates information regarding another person or entity to any government agency regarding a matter of concern of that agency.”5 Accordingly, a person making a complaint to law enforcement might have some protection against a retaliatory lawsuit, but even that protection can be divested in limited circumstances.

The TPPA broadens anti-SLAPP protection. It does not limit its protections to communications to a government agency. The TPPA expressly applies to — and protects — the constitutional rights to petition, to speak freely (including religious expression), to associate freely, and to participate in government. Among other claims, the TPPA will apply to lawsuits claiming libel, slander or false light invasion of privacy, where the challenged statements (including publications) involve a matter of public concern, as is often the case where a SLAPP plaintiff would like to silence others or control the public messaging regarding an issue. Matters of “public concern” are broadly defined, and include issues related to: “(A) Health or safety; (B) Environmental, economic, or community well-being; (C) The government; (D) A public official or public figure; (E) A good, product, or service in the marketplace; (F) A literary, musical, artistic, political, theatrical, or audiovisual work; or (G) Any other matter deemed by a court to involve a matter of public concern.”

Given that Tennessee had only a limited anti-SLAPP statute prior to this year, it is important for the Bar to educate itself about the TPPA and consider how it may be used to protect constitutional rights and quickly dispose of frivolous lawsuits. In short, when a legal action is filed against a person (including companies or nonprofit entities) based upon the exercise of First Amendment rights in connection with a matter of public concern, that person may file a petition to dismiss any of the claims or the entire legal action.6

Specifically, the TPPA provides that a party named in a legal action involving protected rights may file a petition for dismissal “within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.”7 Upon the filing of a petition for dismissal, discovery is automatically stayed pending a ruling on the petition, unless the trial court determines that the plaintiff has a need for specified and limited discovery in order to file an opposition.8 A petition based on legal grounds that do not require factual development will avoid expensive and time-consuming discovery, which drives up litigation costs. This includes cases subject to the constitutional “actual malice” standard under New York Times v. Sullivan and its progeny. The opposing party (usually a plaintiff) may file a response in opposition to the petition, but must do so “no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.”9 In determining whether the opposing party has pled a claim, the trial court must consider any supporting and opposing affidavits, which must be admissible and competent evidence, and not speculation or legal statements.10

The TPPA provides that the petitioning party has the burden of making a prima facie case that a legal action against it is “based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.”11 If that burden is met, then the court must dismiss the legal action if: (i) the plaintiff fails to establish a prima facie case for each essential element of the claim in the legal action or (ii) the petitioning party establishes a valid defense to the claims in the legal action.12 If the court dismisses a claim or entire legal action pursuant to a TPPA petition, the dismissal is with prejudice.13 If the petition is denied and the legal action continues, the determination that the opposing party established a likelihood of prevailing on a claim may not be admitted into evidence, and this initial determination by the court does not affect the burden or standard of proof in the legal action.14

The TPPA also provides that if the trial court denies the petition to dismiss, the petitioning party may file an immediate appeal, as of right, to the Court of Appeals.15 This is the same procedure followed under the Tennessee Reporter’s Privilege/Shield Law.16 If the trial court grants the petition to dismiss, the opposing party also may file an appeal as of right.17 The standard is de novo, not abuse of discretion.18

If the court grants a petition to dismiss, the court must award to the moving party that party’s costs and reasonable attorney’s fees.19 The court also may award additional sanctions against the opposing party if deemed necessary to discourage similar behavior by that party or similarly situated parties.20 The cost and fees requirement, coupled with the threat of sanctions, discourages similar future litigation by the opposing party or by similarly situated parties who wish to pursue SLAPP litigation. If the court denies a petition to dismiss on the basis that it is frivolous or filed solely for delay, the court may award costs and attorney’s fees to the opposing party.21

Thus, the TPPA provides a new substantive remedy to protect those sued for exercising First Amendment rights. At the same time, its limit on discovery; potential quick disposition of SLAPP lawsuits; and the imposition of costs, fees, and possibly sanctions on a SLAPP filer discourage would-be plaintiffs from attempting to use the courts to trample First Amendment rights.



ROBB HARVEY, JOHN WILLIAMS and TODD HAMBIDGE are the directors of the nonprofit Tennesseans for Public Participation Inc., and together with BRADEN BOUCEK of the Beacon Center of Tennessee advised on the free speech implications of Anti-SLAPP bills. Harvey and Hambidge are with Waller Lansden and Williams is with Tune Entrekin & White. DAN HASKELL, with Gullett Sanford, successfully lobbied for the TPPA’s passage.
 


NOTES

1. Tenn. Code Ann. § 20-17-101, et seq.
2. Tenn. Code Ann. § 20-17-102.
3. Tenn. Code Ann. § 20-17-109.
4. See, e.g., Nike, Inc. v. Kasky, 539 U.S. 654, 664 (2003) (Ginsburg, J., concurring) (“protecting … participants [utilizing their right to free speech] from the chilling effect of the prospect of expensive litigation is … a matter of great importance”); id. at 668 (Breyer, J., dissenting) (“threat of a civil action, like the threat of a criminal action, can chill speech”); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) (“Fear of large verdicts in damage suits … even fear of the expense involved in their defense, must inevitably cause publishers to ‘steer … wider of the unlawful zone,’ and thus ‘create the danger that the legitimate utterance will be penalized.’”) (internal citations omitted) (citing and quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)).
5. Tenn. Code Ann. § 4-21-1001, et seq.
6. Tenn. Code Ann. § 20-17-104(a).
7. Id.
8. Tenn. Code Ann.§ 20-17-104(d).
9. Tenn. Code Ann. § 20-17-104(c).
10. Tenn. Code Ann. § 20-17-105(d).
11. Tenn. Code Ann.. § 20-17-105(a).
12. Tenn. Code Ann. § 20-17-105(b)-(c).
13. Tenn. Code Ann. § 20-17-105(e).
14. Tenn. Code Ann. § 20-17-105(f).
15. Tenn. Code Ann. § 20-17-106.
16. Tenn. Code Ann. § 24-1-208(c)(3).
17. Tenn. Code Ann. § 20-17-106.
18. Id.; Tenn. R. App. P. 13(d).
19. Tenn. Code Ann. § 20-17-107(a)(1).
20. Tenn. Code Ann. § 20-17-107(a)(2).
21. Tenn. Code Ann. § 20-17-107(b).