How Anti-SLAPP Laws Work

This piece was originally published in 2015. It was updated in 2023. 

Batterers are master manipulators who know and use all kinds of techniques to intimidate their partners in order to prevent them from reporting abuse to law enforcement. From financial to emotional to physical abuse, manipulators have many ways of controlling the narrative. 

One manipulation tactic that a perpetrator might use is to threaten to sue the survivor in civil court for defamation or libel if he or she reports the abuse. 

SLAPP—also known as Strategic Lawsuits Against Public Participation, or SLAPP suits—are filed against individuals, or entire organizations, who have exercised their First Amendment rights of free speech and petition activity. “What we designate as SLAPP [cases] are the ones that are proven to be frivolous and meritless,” says Evan Mascagni, Policy Director of Public Participation Project, a national nonprofit working to pass federal anti-SLAPP legislation.

SLAPPs occur when an abuser threatens a lawsuit knowing his or her partner does not have the time, money or access to resources to fight a court battle. And, if the abused partner believes that this is true, he or she may decide against reporting the abuse out of fear of having to deal with another court case or to suffer monetary damages.

However, plaintiffs (the person bringing legal action; in this case, the abuser) may still file a cost-heavy lawsuit with the intention to not just win, but to drain the financial resources of the defendant (or survivor, in this case), says Mascagni. When it comes to domestic violence, it’s a commonly used legal bullying tool an abuser may use to intimidate.

“SLAPPS are designed to silence, harass or intimidate a person, by exhausting them, mentally, physically and financially to the point where they don’t want to fight anymore,” says Mascagni.

“What it comes down to is that the abuser will try to sue the victim of domestic violence for reporting the domestic violence. It is abusive litigation,” says David Ward, former legal and legislative counsel at Legal Voice, a nonprofit organization dedicated to the legal rights of women, and current Assistant Attorney General in Washington state. “The abuser tries to use the court system to further harass, coerce, intimidate and terrorize the survivor. Unfortunately, we see it not infrequently. There are abusers who will try to retaliate against victims in any way they can.”

What Protections Do Survivors Have?

Anti-SLAPP laws, a remedy for SLAPP lawsuits, provide defendants a way to quickly dismiss meritless lawsuits filed against them for exercising their rights.

Anti-SLAPP laws are designed to protect ‘the little guy,’ says Austin Vining, a licensed attorney and adjunct professor specializing in media law at the University of Florida. Whether it’s a large company suing a group of farmers, or a domestic violence survivor facing litigation in court against their abuser, Anti-SLAPP supports defendants facing legal intimidation. “It may be meritless, but a lot of times the purpose of these lawsuits is not to win—they just want to either scare the person or outlast them in litigation,” says Vining.

Currently, there is no federal Anti-SLAPP law. However, more legislatures are recognizing and addressing this intimidation technique and passing laws against these types of lawsuits. As of September 2023, 33 states, along with the District of Columbia have anti-SLAPP laws on the books: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Washington. 

Other states may have anti-SLAPP protections in place that are not in the form of specific legislation. In some states, judges might even dismiss lawsuits early on in litigation if the plaintiff’s claims are meritless, says Vining. These courts provide a measure that allows for the litigation to stop before it starts costing more money and time. “However, the range of protections offered to defendants vary across state,” Vining says, “it’s somewhat problematic.”

The wording of anti-SLAPP laws also varies by state. “Generally, they affirm that a domestic violence victim cannot be sued in a civil court for reporting an issue that’s of interest to a government agency,” Ward says. “Anti-SLAPP laws protect you from what you say in the courtroom in [the instance of] a criminal case.”

There are two ways an anti-SLAPP statute might occur in a court proceeding— based on the leniency and wording of the state’s statute as well as the decision of the judge. Some states even have shifting provisions, which create extra protections for the defendant/survivor. 

Anti-SLAPP laws do have one drawback: They do not prevent frivolous cases from going to court. They only offer a defense once the case is in court.

“You still have to go through the court system, meaning you will still need to hire an attorney,” Ward says. “But the good news is that if the case is found to be barred by anti-SLAPP laws, you have the right to be reimbursed for your attorney’s fees.”

“If the defendant, the person who's being sued, brings up that this is a strategic lawsuit against public participation,” Vining says. “If they're successful on that— the other party who brought the lawsuit that was meritless will have to pay all of their attorney’s fees as well.”

There are times legal teams can change the location of the court to a more favorable jurisdiction, but it doesn’t happen often. “We call it forum shopping,” says Mascagni, “a lawyer will strategically find a jurisdiction to file a lawsuit because it's advantageous to his or her case.”

In most domestic violence lawsuits, people won't have the opportunity to choose which state they sue in, Vining says. “If those people lived in Ohio and that's where everything happened, that's typically going to be the state that the lawsuit happens in.”

Yet not all cases are the same. In the latest Depp v. Heard lawsuit, despite both people being residents of California—a state with strong anti-SLAPP laws, Depp’s legal team advocated that the trial should be held in Virginia—a state with weak anti-SLAPP laws. 

“I think even before you speak out publicly, whether it's online or at a townhall,” Mascagni says, specifically regarding abuse, “look and see what your protections are in your state.” The best suggestion would be to speak with a legal expert before anything else, he says.  

Speaking out for survivors is still an option, and a brave one at that. Read, “Using Your Survivor Experience to Help Others,” for more information.