| Subgrades | |
| Covered Speech: | A- |
| Anti-SLAPP Procedures: | C |
| Subscores | |
| Covered Speech: | 90 out of 100 points |
| Anti-SLAPP Procedures: | 60 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: | 6 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
Rhode Island’s anti-SLAPP statute[1] gives “conditional immunity” to the exercise of the right of petition or free speech, meaning “any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.” However, the statute also contains a notable gap in its scope: a communication that is found to be a “sham” does not qualify for statutory protection.[2] 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. Unlike many anti-SLAPP statutes, the Rhode Island statute does not shift the burden of proof on an anti-SLAPP motion to the respondent at any point before the court must decide whether to grant or deny the motion. The statute does not provide for the interlocutory appeal of a decision on an anti-SLAPP motion. The court must award costs and attorney fees to the prevailing anti-SLAPP movant; it must also award costs and fees if that movant ultimately prevails at trial.
How to Improve Rhode Island’s Score
While the state already has a reasonably strong anti-SLAPP law, it could be significantly improved 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 A- 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 Rhode Island’s law does not contain this feature. That is a serious deficiency in the statute.
[1] R.I. Gen. Laws § 9-33-1 through § 9-33-4.
[2] R.I. Gen. Laws § 9-33-2. To be a “sham,” the communication in question must satisfy a detailed set of criteria so that it is both “objectively baseless” and “subjectively baseless.”
