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How Can an Anti-SLAPP Statute Affect a Defamation Claim?

Wealthy companies and individuals rarely welcome news reporting and other commentary critical of the way they go about their business. In fact, they will sometimes go to great lengths to silence their critics and opponents. One of the ways they do this is by filing a strategic lawsuit against public participation — or SLAPP suit — against the critic. The person or entity bringing a SLAPP suit typically alleges defamation but often doesn’t care about having the court rule on the merits of the claim. Rather, the plaintiff uses its deep pockets to draw the speakers into litigation and to drain their resources.

In attempts to counteract the chilling effect of SLAPP suits on speech, anti-SLAPP laws have been enacted. Today, 30 states and the District of Columbia have such laws, which prohibit people from using litigation to intimidate writers, speakers and others from expressing themselves freely. The scope of these statutes varies greatly state to state. Some laws protect defendant-speakers only when they have publicly spoken out against the government. Others are broader, shielding speech connected to any matter of public interest.

Most frequently, anti-SLAPP laws are used by journalists and news organizations to protect themselves from meritless lawsuits filed by entities or people who were the subjects of investigative stories. When a speaker or writer is sued for defamation, he or she can file a motion seeking to have the case dismissed. If the defendant prevails, the plaintiff is required to pay their legal fees.

Kentucky does not have an anti-SLAPP law but a group of Kentucky lawmakers are currently pushing for passage of one. A pending bill introduced by Rep. Nima Kulkarni, a Democrat, received a hearing in early August and appears to have some level of bipartisan support. The measure could be considered at the next legislative session, which starts in January 2022. Until the bill becomes law, Kentucky defamation litigation will continue to be governed by common law, which requires proof of the falsity of the speech at issue as well as the speaker’s carelessness in failing to check its veracity.

Hemmer DeFrank Wessels PLLC is skilled in defense of defamation cases. We are following the progress of Kentucky’s anti-SLAPP bill. If you are facing potential liability for spoken or written communications, call [ln::phone] or contact us online to speak with one of our Fort Mitchell attorneys.