Anti-SLAPP protection

Florida’s anti-SLAPP statutes are Fla. Stat. § 768.295 and Fla. Stat. § 720.304 (4).

Law summary

Fla. Stat. § 768.295 protects free speech in connection with public issues made before governmental entities or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.

Separately, Fla. Stat. § 720.304 (4) prohibits SLAPPs filed by homeowners’ associations against homeowners.

Legal actions

Florida’s law has weak statutory procedures; specifically, it does not provide for the stay of discovery in the event of an anti-SLAPP filing. There is no standard of proof a plaintiff must meet to defeat an anti-SLAPP motion, nor does it guarantee defendants the right to appeal and avoid a full-length trial.

• Summary judgment: A publisher can file a motion to dismiss or a motion for summary judgment.
• Accelerated hearing: After the defendant files a motion for summary judgment, the court is instructed to set a hearing on the motion “as soon as practicable.”
• Attorney fees: The court will award the prevailing party reasonable attorney fees and costs.
• Recoup damages: The court may award damages to a party that is sued by a governmental entity that is found in violation of the anti-SLAPP law. However, the damages awarded are subject to the limitations in Fla. Stat. §  768.28.

Helpful cases

These cases demonstrate a lack of consensus among Florida courts pertaining to whether the anti-SLAPP statute sets forth a burden-shifting mechanism. They also specify who is entitled to the anti-SLAPP statute and outline limitations for party’s seeking attorney fees.

Baird v. Mason Classical Acad., Inc. (2021)

A charter school in Collier County filed a lawsuit claiming tortious interference against a former student’s parent, Joseph Baird, for conducting a multifaceted campaign to interfere with the charter school’s contractual relationships. The parent filed a motion to dismiss pursuant to Florida’s anti-SLAPP statute and argued his communications were a matter of public concern. The trial court dismissed the motion and Baird appealed, and the appellate court denied the special motion again. In both courts, judges argued that Baird failed to establish a prima facie case of protection because several of his communications were made privately, and the plaintiff met the burden to demonstrate the claims were not without merit.

LAM v. Univision Communications Inc (2021)

Pastor Carlos Enrique Luna Lam of Iglesia Cristiana Casa de Dios in Guatemala sued three Univision entities and two journalists for defamation over a news story that included a U.S. Drug Enforcement Administration informant who alleged the pastor accepted money to build his church complex next to a convicted drug trafficking cartel boss. The pastor served over 230 discovery requests, and Univision moved to dismiss the complaint pursuant to Florida’s Anti-SLAPP statute, arguing the statute imposed a “materially higher burden” on plaintiffs to prove their claim is substantive. The trial court adopted Univision’s proposed order and concluded Florida’s Anti-SLAPP statute places the burden on plaintiffs — not on Univision — to prove their claims are not without merit. However, upon Pastor Luna’s appeal, the District Court of Appeals ruled conversely, writing the plain text of Florida’s Anti-SLAPP statute did not impose a heightened burden on the plaintiffs.

Crosby v. Town of Indian River Shores (2023)

In 2023, William Crosby, a trustee on the Town of Indian River Shores’ pension board, sued the Town of Indian River Shores for defamation after town council members publicly stated that the plaintiff acted unethically, immorally, and illegally by voting to raise the pension return rate while serving as a finance committee member. After the town defendants filed an anti-SLAPP motion, the trial judge dismissed the case. Crosby filed an appeal, and the Florida Court of Appeals reversed the dismissal, claiming Florida’s anti-SLAPP statute “protects the people, not the government.”

Lee v. Animal Aid Inc Rhoda Mann (2024)

Animal Aid, a not-for-profit offering services such as homeless pet recovery and adoption, filed a complaint against Mindy Lee, a former volunteer, for defamation. Lee allegedly began publishing false statements about Animal Aid, including that the nonprofit used non-sterile surgical tools and no pain medication, and posted negative comments on Yelp and Google reviews. Lee moved for summary judgment, which in part alleged that Animal Aid’s defamation suit violated the anti-SLAPP statute because it sought to silence public criticism of the nonprofit’s operations. The trial court ordered the parties to submit to non-binding arbitration. Neither the arbitrator, nor the trial court, found Animal Aid’s suit violated the anti-SLAPP statute. The arbitrator and trial court never determined that Animal Aid’s claim was “without merit” or that the claim was filed “primarily” because Lee “exercised the constitutional right of free speech in connection with a public issue.” The arbitrator also determined Lee was not liable to Animal Aid for defamation because Animal Aid was a limited public figure and Animal Aid failed to show evidence that Lee acted with actual malice. The arbitrator recommended that no damages be awarded to either party. The trial court subsequently denied Lee’s motion for attorney’s fees under the provision of the anti-SLAPP statute since Lee never obtained a ruling that Animal Aid’s claim violated the anti-SLAPP statute. Lee appealed the trial court’s denial, and an appellate court affirmed the trial court’s decision, writing that merely raising the anti-SLAPP statute as an affirmative defense will not entitle a party to fees under the anti-SLAPP statute. Since Lee had filed the motion with no attorney of record, the court also clarified that non-attorney proceedings are not entitled to an award of attorney’s fees. On a separate note, the court specified that plaintiffs are not entitled to fees under the anti-SLAPP statute.

Legislative activity

Florida lawmakers proposed a law that applies only to condominium unit owners/members who face SLAPP lawsuits from condominium associations during the 2024 legislative session.

In 2000, Florida enacted section 768.295, called the “Citizen Participation in Government Act,” and subsequently a 2015 bi-partisan bill, which broadened the anti-SLAPP statute’s scope to include lawsuits brought by “persons” and not just governmental entities. 

Near the end of 2023, three bills were proposed by Florida state senators Alex Andrade, Ileana Garcia, and Jason Broder to make it easier to successfully sue news media for defamation. All three proposed bills died in March 2024.

Of note

According to the Institute for Free Speech, the courts of appeal in Florida are divided regarding whether the statute provides for a right to interlocutory appeal. Two decisions found it does not: Vericker v. Powell, 343 So. 3d 1278 (Fla. Dist. Ct. App. 2022); Bosshardt v. Drotos, No. 1D21-3379 (Fla. Dist. Ct. App. Nov. 30, 2022). By contrast, one decision found that the “essential requirements of law” require interpreting the law as providing such a right. See Davis v. Mishiyev, No. 2D21-1726 (Fla. Dist. Ct. App. May. 11, 2022).