Anti-SLAPP protection

WA Rev. Code § 4.105 adopts a version of the Universal Public Expression Protection Act to provide defendants with a “special motion for expedited relief.”

Law summary

Washington’s anti-SLAPP statute applies to those facing litigation based on the exercise of their rights to speech, press, petition, assembly, and association, under the federal or state constitution, “on a matter of public concern.” It also applies to communication in a governmental proceeding, as well as communication that concerns an issue under consideration in a governmental proceeding.

Under the statute, those filing a motion must provide the responding party with a written notice at least 14 days before filing. If notice is not provided, defendants are not entitled to attorneys’ fees. During this period, a plaintiff might voluntarily withdraw or amend the pleading.

If the case proceeds, the party that filed the motion must first prove that Washington’s anti-SLAPP statute applies. Then, the burden of proof shifts to the responding party. If the court rules in favor of the motion, the case is dismissed with prejudice.

There are exceptions to Washington’s anti-SLAPP statute, including claims filed against or by a government unit or a government employee acting in their official capacity. Other exceptions apply to certain claims involving businesses, real property possessory rights and fraud.

Legal actions

Washington’s anti-SLAPP law includes certain actions for those facing frivolous and malicious lawsuits.

• Special motion for expedited relief: Washington’s anti-SLAPP statute allows a case to be dismissed quickly. A defendant must file this motion 60 days after a claim is brought against them. From that point, the court must hold a hearing within 60 days of the motion being filed unless an exception is made, such as if limited discovery is allowed or for “other good cause.”  The court must then issue a ruling within 60 days of the hearing.
• Stay: All discovery and other pending hearings and motions are stayed under Washington’s anti-SLAPP statute, although the court can request limited discovery if necessary.
• Interlocutory appeal: After the motion is ruled on, either party can move to immediately appeal it. The stay provision continues to apply until after the appeal is decided. An appeal must be filed within 21 days of the order.
• Fee recovery: The court can award court costs, attorneys’ fees and litigation expenses to the prevailing party. A moving party is not entitled to fees if it fails to provide the responding party with a notice by the necessary deadline. If the case is voluntarily dismissed without prejudice during this period, the moving party is still able to “obtain a ruling on the motion” and recover costs.

Helpful cases

As the first state to adopt the UPEPA language as a part of its anti-SLAPP law, these cases offer insight into how the law’s procedure applies in practice.

Jha v. Khan (2022)

In 2019, during her political campaign for city council, Varisha Mahmood Khan published an article on medium.com that criticized her opponent for putting developer interests over residents. The article stated that one of the developers named in the article, Siddharth Jha, had recently been involved in litigation for revenge porn and abuse of an ex-girlfriend. Jha sued Khan on multiple counts, including defamation. In response, Khan filed a motion under Washington’s anti-SLAPP statute. Jha argued that the anti-SLAPP statute didn’t apply because Khan’s statements were “not on a matter of public concern.” Before the hearing, the trial court allowed Jha to amend his complaint, which he used to slim it down to a false light invasion of privacy lawsuit. The trial court denied Khan’s motion to dismiss and permitted Jha to submit a second amended complaint that added two claims. The trial court’s decision was reversed and remanded by the Washington Court of Appeals, which stated that Khan’s statements were a matter of public concern and that Jha did not show the statements in question to be provably false. Additionally, the Court of Appeals found that the trial court erred by allowing Jha to file amended complaints, as all proceedings should be automatically stayed once a dismissal motion is filed. The RCFP supported the reversal of the trial court’s decision in an amici curiae brief.

Thurman v. Cowles Company (2024)

The Spokesman-Review (under Cowles Publishing Company) published an article in 2019 regarding the firing of Jeffrey Thurman, the sheriff of Spokane County, following an internal investigation. Thurman sued the newspaper for defamation and invasion of privacy by false light. Thurman later amended the complaint, adding new factual allegations to the defamation claim, alleging a violation of the state’s Consumer Protection Act (CPA) and omitting the invasion of privacy claim. In response, Cowles Company filed a motion under Washington’s anti-SLAPP statute. The trial court partially granted the motion, denying its application to the defamation cause of action since it was filed prior to the new anti-SLAPP law’s date of effect. The CPA claim was dismissed under the statute, since it had been filed in the amended complaint. The Court of Appeals ruled that Washington’s anti-SLAPP statute could be applied to the original and amended defamation claims and remanded the case to the trial court. The Court of Appeals also addressed Thurman’s claims that some provisions under the UPEPA were unconstitutional. The Court of Appeals stated that the discovery stay under UPEPA did not unconstitutionally interfere with Thurston’s access to the courts. However, it also stated that “court rules of practice and procedure supersede conflicting laws.” Because of this view, the court agreed with Thurman that the “narrow discovery envisioned in the UPEPA is inconsistent with the broad discovery permitted by CR 26, and the civil rules must be given precedence.” The court also found that UPEPA’s right of immediate appeal conflicted with court rules of practice and procedure, stating that “appellate courts should accept review of these matters only under discretionary review standards.” It remains unclear how these decisions will influence future applications of Washington’s anti-SLAPP statute.

Johnson v. Ryan (2015)

Although this case was decided before the current anti-SLAPP law went into effect, its decision offers insight into how the court might interpret the idea of “public concern.” Yvonne Johnson and James Ryan worked at a local theater. After receiving an anonymous email regarding the “non monogamous nature of Ryan’s marriage,” and his “online sex solicitations,” Johnson fired Ryan at the direction of the board. After his firing, Ryan engaged in a public campaign against Johnson and his firing, including posting statements about her under a blog he created. Johnson filed suit against Ryan for intentional interference with business expectancy and defamation. In response, Ryan filed a motion under the state’s anti-SLAPP law. While the trial court agreed with his motion, their decision was reversed by the Court of Appeals, which found that Ryan’s blogging was “primarily for personal concern, not public concern,” and therefore not actionable under the state’s anti-SLAPP law.

Legislative activity

Washington has an extensive history of anti-SLAPP legislation. In 1989, it became the first state to implement an anti-SLAPP law. Another, more extensive anti-SLAPP law was passed in 2010, but was struck down in 2015 after the Supreme Court found it violated the right to trial by jury. The current version was implemented in 2021 and is influenced by the Uniform Law Commission’s “Uniform Public Expression Protection Act.”

Of note

Washington was the first state to adopt a version of the Uniform Public Expression Protection Act.