| Subgrades | |
| Covered Speech: | A+ |
| Anti-SLAPP Procedures: | C+ |
| Subscores | |
| Covered Speech: | 100 out of 100 points |
| Anti-SLAPP Procedures: | 70 out of 100 points |
| Detailed Scoring on Anti-SLAPP Procedures | |
| Suspension of Court Proceedings Upon an Anti-SLAPP Motion: | 18 of 20 points |
| Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: | 12 of 12 points |
| Right to an Immediate Appeal: | 0 of 25 points |
| Award of Costs and Attorney Fees: | 40 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
State Anti-SLAPP Statute
Louisiana’s anti-SLAPP statute[1] protects the acts of any person[2] in furtherance of the right of free speech in connection with a public issue.[3] Although discovery is stayed once an anti-SLAPP motion is filed, a court may nonetheless order specified discovery to be conducted if good cause is shown. To prevail against an anti-SLAPP motion, the respondent must establish a probability of success at trial. The statute does not provide for interlocutory appeal of an order granting or denying an anti-SLAPP motion. A court must award costs and attorney fees to the prevailing party on an anti-SLAPP motion.
How to Improve Louisiana’s Score
While the state already has a reasonably strong anti-SLAPP law, it could be upgraded with one minor change. The law does not include a right to an “interlocutory” appeal. Speaking generally, that is a request to a higher court for it to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain, so this right of appeal is an important feature of an anti-SLAPP law. Without it, a defendant who loses an anti-SLAPP motion would be forced to continue to litigate the entire trial before the finding on the motion could ever be appealed.
As attorney Ken White has eloquently explained, the provision of a right of interlocutory appeal creates a strong protection for First Amendment liberties, because it “dramatically reduces the coercive effect of filing a lawsuit targeting speech.”
The Uniform Law Commission’s. model anti-SLAPP law – UPEPA – includes an interlocutory appeal provision. More information about UPEPA is available here.
With this one change, the anti-SLAPP procedures subgrade would rise to A and the overall grade would rise to A.
[1] La. Code Civ. Proc. Ann. art. 971.
[2] However, it should be noted that the courts of appeal disagree over what type of “persons” are covered under the statute. See Lacerte v. State, 323 So. 3d 414 (La. Ct. App. 2021); Lacerte v. State, 317 So. 3d 763 (La. Ct. App. 2021); Lacerte v. State, 330 So. 3d 656 (La. Ct. App. 2021); Braxton v. La. State Troopers Ass’n, 333 So. 3d 516 (La. Ct. App. 2022); Duhe v. Loyola Univ. of New Orleans, 22-292 (La. App. 5 Cir. 05/30/23).
[3] This includes aspects of commercial speech – see Risher v. Doug Gore & Lifestyle, LLC, 2022 CW 0138 (La. Ct. App. May. 11, 2022) (holding that criticisms of a business are matters of a public concern) – but does not include racial slurs an employee makes which result in his/her termination even though a news outlet has reported on the issue. See Jones v. St. Augustine High Sch., 336 So. 3d 470 (La. Ct. App. 2022).
