Nebraska
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Nebraska

Anti-SLAPP protection

Nebraska’s anti-SLAPP protections are comprised of statutes NE Code § 25-21, 241 to 25-21, 246, NE Code § 25-2301.02, and Neb.Rev.Stat. § 25-824(4).

Law summary

To qualify as a SLAPP under Nebraska’s narrow law, the lawsuit must be filed by a public applicant or permittee and target an effort by a defendant to comment on or challenge an application or permission related to an obtained permit, zoning change, license, lease, and certificate. 

In instances where a plaintiff cannot afford filing fees, they must receive approval from a court to file their motion. Following statute NE Code § 25-2301.02, a court or defendant can object and prevent the approval by proving the plaintiff already has sufficient resources or the proposed lawsuit is frivolous.

Independent of a plaintiff or defendant, a court may order attorney’s fees and court costs against any attorney or party who alleges a claim or defense which a court determines is frivolous or made in bad faith following Neb.Rev.Stat. § 25-824(4).

Legal actions

Nebraska’s laws lack specificity. For example, the statutes pertaining to public petition and participation do not address whether the motion to an expedited hearing suspends discovery proceedings. The statutes also do not specify what evidence a court will consider in determining whether a plaintiff’s claim has a substantial basis in law.

  • Accelerated hearing: Once the defendant demonstrates the lawsuit involves public petition and participation, the court must expedite and grant preference in scheduling a hearing.
  • Attorney fees: Costs and attorney’s fees may be recovered upon demonstration that the lawsuit could not be supported by a substantial argument.
  • Recoup damages: Other compensatory damages may only be recovered upon additional demonstration that the lawsuit purposely harassed, intimidated or maliciously inhibited the free exercise of petition, speech or association rights.
  • Summary judgment: Defendants can file a motion for summary judgement.

Helpful cases

Nebraska courts have considered few cases regarding the state’s anti-SLAPP law and therefore have provided little clarity regarding crucial aspects of the law. The courts, however, have considered Neb.Rev.Stat. § 25-824(4) on several occasions, which is concerned with frivolous lawsuits and could be helpful for publishers in the state.

Sand Livestock Systems v. Svoboda (2008)

In 2000, hog producer Furnas County Farms and construction company Sand Livestock Nebraska sued two local farmers for defamation arising from written comments the farmers filed about Furnas’ environmental record with state regulators. The farmers countersued under the Nebraska anti-SLAPP law, and in 2005, a jury rejected Furnas’ defamation claims and ordered it to pay $900,000 in damages plus legal fees. Furnas appealed. An appellate court agreed the defamation claim lacked merit, but overturned the fee award, saying a judge, not a jury, needed to determine whether the lawsuit had substantial basis in fact and law. The appellate court reversed the district court’s decision and remanded for a new trial, highlighting the dearth of guidance around anti-SLAPP claims in general and, particularly, what is appropriate for the jury to decide.

Botts v. Lincoln Journal Star (2014)

Anthony Botts sought to sue the Lincoln Journal Star and Lori Pilger for defamation while waiving all filing fees. To do so, he needed approval from a trial court and in his application, Botts alleged the headline of an article about him was misleading. It read, “Man Sues Lincoln Police Over His Trip to Jail,” and referred to Botts’ lawsuit against the Lincoln police for injuries he suffered during transport to jail. A trial court found the headline was not defamatory and allowed Botts to amend the complaint in the application. His revised complaint specified $1 million in damages for humiliation, but the trial court concluded he still failed to identify any special damages and denied his application to file suit following statute Neb.Rev.Stat. § 25-824(4) because it lacked merit. Botts appealed. An appellate court agreed the defamation claim in his application lacked merit because his complaint asserted only general damages, not special damages.

Prokop v. Cannon (1998)

Nancy Hoch and Robert Prokop were opposing candidates for a spot on the University of Nebraska board of regents in the 1988 general election. Hoch sued Prokop for defamation over fliers criticizing Hoch’s record. After seven years of pretrial motions and amended petitions, Hoch dropped the lawsuit two days before the scheduled trial. That day, the Omaha World-Herald newspaper ran a story about the lawsuit in which one of Hoch’s attorneys was quoted saying that his client had dropped the suit because she had been able to stop Prokop’s defamatory remarks. Prokop then sued Hoch’s attorneys for defamation, requesting $5 million in specific damages. During trial, Prokop amended his petition three times, but the court did not want to expend further resources and time and prohibited him to amend his petition a fourth time. Prokop appealed and an appellate court overturned the amendment limitation imposed by the trial court due to Neb.Rev.Stat. § 25-824(4), determining the original defamation lawsuit against him was indeed frivolous and therefore Prokop could state a cause for attorney’s fees.

Legislative activity

Nebraska’s statutory scheme concerning public petition and participation was enacted in 1994. There has been no effort to update or propose new anti-SLAPP legislation since.

Of note

Nebraska’ anti-SLAPP statutes received a D- from the Institute for Freedom of Speech, stating the fundamental flaw in Nebraska’s anti-SLAPP statute is it covers too little speech.