| Subgrades | |
| Covered Speech: | A+ |
| Anti-SLAPP Procedures: | C- |
| Subscores | |
| Covered Speech: | 100 out of 100 points |
| Anti-SLAPP Procedures: | 54 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: | 0 of 12 points |
| Right to an Immediate Appeal: | 0 of 25 points |
| Award of Costs and Attorney Fees: | 36 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
State Anti-SLAPP Statute
Indiana’s anti-SLAPP statute[1] protects acts in furtherance of rights both to free speech and to petition in connection with a public issue or an issue of public interest. The filing of an anti-SLAPP motion stays all discovery proceedings, except for discovery relevant to the motion. The anti-SLAPP movant must state with specificity how the anti-SLAPP statute protects the movant’s actions; that the motion will be granted if the movant proves, by a preponderance of the evidence, that the actions in question are lawful and that they fall within the scope of the anti-SLAPP statute. Although the statute is silent on the right to interlocutory appeal if an anti-SLAPP motion is denied, the movant may appeal the matter if the court fails to act on the anti-SLAPP motion within 30 days. The court must award costs and attorney fees to the prevailing movant on an anti-SLAPP motion, although Indiana caselaw suggests that the movant is entitled to fee-shifting only if the original action is brought primarily to chill the exercise of First Amendment rights.[2]
How to Improve Indiana’s Score
While the state already has a reasonably strong anti-SLAPP law, it could be bolstered with two minor changes. 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.”
With this one change, the anti-SLAPP procedures subgrade would rise to B+ and the overall grade would rise to A.
Finally, the Uniform Law Commission’s model law and most anti-SLAPP laws put the burden of proof on the plaintiff to show a prima facie case. But Indiana’s law does not contain this feature. That is a serious deficiency in the statute.
[1] Ind. Code § 34-7-7-1 through § 34-7-7-10.
[2] Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. Feb. 6, 2007).
