| Subgrades | |
| Covered Speech: | C- |
| Anti-SLAPP Procedures: | D |
| Subscores | |
| Covered Speech: | 50 out of 100 points |
| Anti-SLAPP Procedures: | 38 out of 100 points |
| Detailed Scoring on Anti-SLAPP Procedures | |
| Suspension of Court Proceedings Upon an Anti-SLAPP Motion: | 9 of 20 points |
| Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: | 6 of 12 points |
| Right to an Immediate Appeal: | 13 of 25 points |
| Award of Costs and Attorney Fees: | 10 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
State Anti-SLAPP Statute
Arizona’s anti-SLAPP statute, amended in 2022,[1] now covers all constitutionally protected speech on matters of public concern. Unfortunately, it also has an odd provision not in any other anti-SLAPP statute. It requires that a defendant filing an anti-SLAPP motion must show that the lawsuit “was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.” Plaintiffs suing speakers will not be required to respond to an anti-SLAPP motion until or unless the target of their lawsuit has established this “prima facie proof.” This places a unique burden of proof on a speaker and has thus eroded Arizona’s score. If a speaker successfully demonstrates that this “prima facie proof” exists, discovery is suspended. Even so, the court retains the power to order “specified discovery” for “good cause.” An Arizona court shall grant a motion to dismiss under the statute if the responding party is not a state actor and “shows that the legal action on which the motion is based is justified by existing law or supported by a reasonable argument for extending or modifying existing law.” The amendments to the previous law now provide for interlocutory appeal of an order granting or denying an anti-SLAPP motion, but that too is conditioned on the defendant establishing the “prima facie proof” discussed above. A court “may” award costs and attorney fees to the prevailing movant on an anti-SLAPP motion (it is notable that the law previously required the awarding of such costs and fees); but if the court finds that the motion is frivolous or solely intended to delay, it must award costs and attorney fees to the respondent. The law does not appear to include a provision granting a moving party the right to seek costs and fees if a respondent voluntarily dismisses the lawsuit.
How to Improve Arizona’s Score
The most important part of anti-SLAPP law is the scope of speech that the statute covers. After all, strong statutory procedural protections are of no help to a speaker if the scope of the statute excludes the speech at issue.
Although the amended statute now covers all constitutionally protected speech on matters of public concern, the odd provision requiring speakers to show the lawsuit was “substantially motivated” by a “desire” to abridge speech limits the effectiveness of the law. If Arizona simply removed that provision, thus bringing the statute in line with the covered speech provision of the Uniform Law Commission’s model law, the overall grade would rise to a “B.” That model law is described above and is available here.
Arizona should also consider removing the aforementioned “prima facie proof” burden on speakers from the “interlocutory appeal” and suspension of court proceedings components of its law.
The Uniform Law Commission’s model law and the statutes of most states with anti-SLAPP statutes suspend discovery once an anti-SLAPP motion is filed. As currently written, Arizona’s law does not automatically provide such protections; and the effectiveness of the law (and thus the protections for free speech) will depend on how courts interpret it.
Strong anti-SLAPP laws impose notable costs on plaintiffs with weak or frivolous cases. One important feature of strong anti-SLAPP statutes is that they make losing plaintiffs liable for reasonable attorney fees and court costs originally borne by the speaker.
Unfortunately, Arizona gives the court the option, not the requirement, of awarding reasonable attorney fees and court costs to prevailing defendants.
A mandatory fee-shifting provision would make it more likely that a defendant with limited financial resources who faces a SLAPP will be represented by an attorney. The prospect of fee-shifting encourages attorneys to provide such defendants with representation – especially when defendants face weak or frivolous claims.
[1] Ariz. Rev. Stat. Ann. §12-751.
