Anti-SLAPP protection

Arizona’s anti-SLAPP statute is A.R.S. § 12-751.

Law summary

Arizona’s anti-SLAPP statute provides expedited mechanisms for a party to challenge claims that are perceived to suppress protected First Amendment expression. The statute refrains from defining specific activities and lists several broad constitutional rights, such as the right of speech, freedom of the press, and the right to peacefully assemble.

The statute requires a defendant filing an anti-SLAPP motion to show the lawsuit “was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.”

Arizona’s anti-SLAPP law also contains separate requirements for plaintiffs who are state actors when responding to a motion to dismiss. To show that their legal action is justified, they must satisfy one of three requirements, such as demonstrating the present legal action is consistent with a track record of pursuing similar legal actions against unlawful actions.

Legal actions

To successfully apply this statute, a publisher must prove the legal action was motivated by a desire to deter, retaliate against, or prevent the lawful exercise of a constitutional right.

• Motion to dismiss: Within 60 days of the lawsuit’s filing, the party may file a motion to dismiss or quash the action. The publisher has the burden of establishing the legal action against it was motivated by a desire to deter protected free speech. If the court finds such proof is established, then the responding party is required to file a response.
• Stay of discovery: Discovery is stayed if the court approves the defendant’s evidence. The stay of discovery remains in effect until the court rules on the motion.
• Interlocutory appeal: A right to an interlocutory, or interim, appeal is available, but on the condition that the defendant has established “prima facie proof.”
• Attorney fees: If the court grants the motion to dismiss or quash, the court may award the defendant costs and reasonable attorney fees, including those incurred for the motion.

Helpful cases

The effectiveness of Arizona’s anti-SLAPP law hinges on the court’s interpretation of what constitutes a person’s lawful exercise of free speech. The following cases demonstrate how judges have generally broadly interpreted the anti-SLAPP law:

Riedel v. Fuentes (2019)

Over two separate council meetings, Guillermina Fuentes made lengthy statements accusing developer Nieves Riedel of actions that made her feel unsafe. The developer sued Fuentes for defamation. Fuentes filed a special motion to dismiss under A.R.S. § 12-751. A trial court granted the motion and awarded Fuentes attorney fees. Riedel appealed, arguing that at the second meeting neither herself or the development were on the agenda, hence she was not addressing an issue under consideration or review by city council or a matter of public concern. Still, the appellate court upheld the decision because the second meeting’s agenda included matters relating to the police and Fuentes’ comments regarding Riedel were made in connection with complaints about alleged police harassment. For that reason, Fuentes was commenting on a matter of public interest.

BLK III, LLC v. Skelton (2022)

Entertainment and dining business BLK sued several of its neighbors for defamation, alleging they orchestrated a scheme to report false sound violations to the Scottsdale Police and solicited help from the city council to revoke its permit. The neighbors used the anti-SLAPP statute to ask that the lawsuit be dismissed. A trial court dismissed the complaint and awarded the defendants their attorney’s fees and costs. BLK appealed, arguing the defendant’s noise complaints to the police and city council members were not made before a legislative or governmental proceeding, and hence were not protected by the statute. An appellate court disagreed. For any lingering ambiguity concerning the statute’s construction, the appellate court recommended reading A.R.S. § 12-751 broadly to be consistent with the state legislature’s purpose in enacting the anti-SLAPP provision.

Greenburg v. Wray (2023)

Amanda Wray managed a Facebook group dedicated to criticizing policies within the Scottsdale Unified School District. Mark Greenburg saw that the group advocated for schools to reopen from the pandemic, and that negative comments about him were being made in the Facebook group. He began compiling information on Wray in a Google Drive that was not password protected. The URL made its way into Wray’s possession, and soon after Greenburg sued Wray for defamation, alleging Wray defamed him and invaded his privacy. Wray then filed a special motion to dismiss, and a trial court dismissed Greenburg’s complaint. Because Wray’s comments were opinion and hyperbole made in the context of a heated political debate, the court deemed a reasonable listener would interpret the comments as belief, not legitimate accusations. The court said that allowing the defamation case to proceed would chill free speech.

Legislative activity

Arizona’s initial statute was enacted in 2006. The law protected individuals engaging in direct petitioning of the government. The 2022 revision of Arizona’s anti-SLAPP statute marked a substantial expansion of protected activities.

Of note

Although the amended statute covers all constitutionally protected speech on matters of public concern, the Institute for Free Speech gave Arizona a D+ rating. The IFS concluded that the law’s requirement that speakers show the lawsuit was motivated by a desire to squash speech hinders its effectiveness.