What arguments are there for not passing anti-SLAPP laws?

Question

A SLAPP (strategic lawsuits against public participation) lawsuit is a frivolous lawsuit made by someone who does not believe they can win. The main reason for them is to cause the defendant significant legal fees in the hopes the defendant will concede, despite having a winning case, to avoid the legal costs. The threat of a SLAPP lawsuit is allegedly used by many of the larger companies, or richest individuals, to bully other's into going along with their wishes to avoid being forced to pay prohibitively high defense costs to defend against a SLAPP.

As of now 31 states, and DC, have some form of anti-SLAPP laws. These laws usually consist of either a way to get a case thrown out very early if it is clearly frivolous, to avoid most fees, and/or a means to force the person suing to pay for the defendant's legal fees if it's ultimately determined the lawsuit was a SLAPP.

However, there are many situations where a lawsuit could be filed in any state, such as one involving anything said or done on TV or the internet. In these cases individuals wanting to file a SLAP lawsuit will find a reason to justify filing the lawsuit in one of the states without anti-SLAP laws, thus making SLAP lawsuits a real threat despite the majority of states having anti-SLAPP laws.

I'm wondering why there isn't universal anti-SLAPP laws. That is to say both why haven't the other 20 states created anti-SLAPP laws, and why hasn't the federal government attempted to enact any kind of anti-SLAPP legislation?

Are there arguments being made against anti-SLAPP legislation? I'm also wondering it the support, or denial, of anti-SLAPP legislation falls along political lines.

Answer 1

The closest-to-legitimate-criticism of anti-SLAPP legislation boils down to: "It's not possible to distinguish SLAPP from 'legitimate' lawsuits, so this has the 'guilty until proven innocent' problem."

The idea is that one person's SLAPP is another person's legitimate defamation claim. It's a difficult position to defend, especially since anti-SLAPP legislation is usually at least slightly deferential to the plaintiff - only truly egregious cases get tossed for this reason - but if you don't care about facts for whatever reason, you can always just make up a bunch of innocent people hurt by anti-SLAPP.

In reality, SLAPPs are a tool of the wealthy, since it's basically a loss-leader strategy where you spend money to force them to spend money and expect them to go broke before you do.

As a result, the folks with a vested interest in keeping the tool in the toolbox are prominent members of the donor class. This makes establishing a movement for Federal anti-SLAPP more difficult.

There is also the technical issue of the fact that SLAPPs rely on state laws to function, so constructing a piece of Federal legislation to confront them is a bit of a high wire act - not impossible by any stretch, but one more reason for legislators to not bother.