SLAPPs, SLAPP backs, and SLAPP back backs: The Fight for Attorney Fees in Defamation Law

Leaving bad reviews can get you sued. Disgruntled customers of a flooring company complained about “deplorable work,” and then got sued by the flooring company. The customers paid $15,000 to make the lawsuit go away, because they knew that a court fight would be more expensive.

There are tens of thousands of cases like this, where citizens are sued into silence, for exercising their First Amendment rights. This intimidation tactic earned the acronym SLAPP—Strategic Lawsuits Against Public Participation. Several states, including Florida, have fought back by enacting “anti-SLAPP” laws. These laws put the losing party on the hook for the attorney fees of the “prevailing party.” The prevailing party is generally the person getting sued—or subject to the SLAPP. But the law also allows the party to SLAPP back the back SLAPPER. In California, for example, if the plaintiff can show that defendant’s anti-SLAPP action was frivolous, the plaintiff can get the defendant to cover everyone’s attorney’s fees.

Florida’s anti-Slapp law is among the broadest. The Florida anti-Slapp law prohibits lawsuits “without merit” and “primarily because” the defendant “has exercised the constitutional right of free speech in connection with a public issue.”

Public issue could mean several different types of statements—there is no clear Florida decision on how broad this term really is. The Florida Legislature has established that this term includes at the very least a statement made “in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.”  But who knows how many different types of forums would count as some “other similar work”? A similar work can include campaign flyers, wrote one Florida judge.

The contours of the meaning of “public issue” remain unclear in Florida. But there is no mistake about the competing values that remain in the balance. On the one hand, people should be able to complain about floor contractors on Yelp or Google without getting sued. But if a statement is false and hurtful, the person or business on the receiving end of a bad review should be able to recover in a defamation lawsuit. If you get caught on either end of this, it is important to consider the risks and potential rewards for prosecuting or defending a lawsuit. Please feel free to contact me to discuss your case.