How Strategic Lawsuits Against Public Participation (SLAPP) lawsuits violate your freedom – HB 222 / KRS 454.460
In 2022, Kentucky joined 32 states in passing anti-SLAPP legislation. Strategic Lawsuits Against Public Participation, commonly referred to as SLAPP, are built around one goal: to overwhelm you with legal threats and documents in order to stop you from pursuing your First Amendment right of freedom of speech. It moves your freedom of expression from the public space into the judicial arena. SLAPP lawsuits typically include defamation, contract interference, and abuse of process.
For instance, in a 2022 Supreme Court of Kentucky case, a group of Louisville homeowners contested a Louisville Metro Council ordinance approving rezoning 43.5 acres of land near their homes for Bardstown Capital Corporation to build an entertainment and shopping center. Three months after the rezoning was deemed appropriate, Bardstown Capital filed a complaint against the homeowners claiming the homeowners had conducted an abuse of process through a wrongful use of civil proceedings. It took six years for the case to make it to the Supreme Court, which ultimately decided the homeowners had the right to protest the ordinance under the First Amendment. The Court also opined that the lawsuit could have been considered SLAPP litigation. 643 S.W.3d 68, 79 (2022)
A few months after that case was decided, HB 222 was signed into Kentucky law to help combat SLAPP litigation. Had the law existed in 2016, the homeowners could have argued that their rezoning protests were an exercise of their freedom of speech under the United States Constitution and the Kentucky Constitution. HB 222 could have saved the homeowners years’ worth of litigation costs.
Anti-SLAPP legislation allows a defendant, the person exercising free speech, to file a motion to dismiss a case because it involves protected speech on a matter of public concern. In essence, you can ask the court to expedite the litigation. Most of the court hearings that happen between the original lawsuit and the court’s finding can be put on pause while the judge determines if the lawsuit is proper on its merits or if it is intended to violate your First Amendment rights by tying you up in a drawn-out legal battle. Court cases can take a long time. The Louisville homeowners were tied up in litigation for six years. During that time, you may not be able to utilize your freedom of speech regarding matters that are tied up in litigation.
During the pause in litigation, the court can allow minimal discovery for a party to show specific information necessary to establish that the lawsuit is proper, or improper, on its merits. If the court finds that the cause of action is a SLAPP, it must dismiss the cause of action with prejudice. Meaning, the party looking to silence you through the judicial system cannot try to bring that lawsuit, under those circumstances, against you again.
Through HB 222, Kentucky has shown how important First Amendment rights are to citizens of the Commonwealth. This article provides only a brief explanation of SLAPP litigation.
If you have any further questions regarding this new law, and would like to further discuss these issues, please contact the Denton Law Firm at 270-450-8253. Jonathan Russelburg contributing author.