Andrew Rome 

Many are sued simply for engaging in public discourse.^[1] Lawsuits brought with the intent of silencing or punishing First Amendment activity are called “SLAPP” suits.^[2] SLAPP is an acronym for Strategic Lawsuit Against Public Participation.^[3] SLAPPs are, by their nature, meritless; the plaintiffs have no intention of recovering damages.^[4] A David and Goliath element is central to SLAPPs: the suits commonly pit large corporate entities against citizens of modest means who fear the expense and travails of litigation.^[5] The judicial system becomes a weapon, and the threat of costly litigation is the ammunition.^[6] The end-result chills free speech.^[7] A quintessential SLAPP might involve a defamation suit brought by a developer against a community member for circulating a neighborhood petition against the development project.^[8] 

This Note specifically examines the constitutionality of Vermont’s anti-SLAPP statute. Ideally, anti-SLAPP statutes achieve a perfect balance between the rights of one party to engage in public petitioning activity, and the rights of the adverse party to meaningful judicial redress.[9] However, by protecting the First Amendment rights of one group of people, many state anti-SLAPP statutes overreach and place unconstitutional obstacles in the path of citizens with legitimate injuries.[10]  Vermont provides an interesting case study because its anti-SLAPP statute shares common attributes with other states. Similar to other states, Vermont’s anti-SLAPP burden-shifting procedure places an exceedingly high burden on the plaintiff at the pleading stage of litigation.^[11] And, similar to other states, Vermont’s statute on its face broadly defines protected activity.^[12] Recently, however, the Vermont Supreme Court implemented a test that adequately limits the statute’s scope.^[13] This ruling provides a model for other states grappling with the scope of anti-SLAPP legislation. This Note, therefore, on one hand explores needed amendments to Vermont’s anti-SLAPP statute, and, on the other hand, explains why Vermont’s interpretation of part of the statute serves as a model. The purpose of this Note is not to invalidate Vermont’s anti-SLAPP statute. These statutes, by and large, serve a good purpose and are needed. As stated above, SLAPP lawsuits happen in Vermont and all over the country with disturbing regularity.^[14] Instead, this Note proposes a solution that combines the approaches taken in Vermont and California.

The problems facing Vermont and California’s anti-SLAPP statute form an inverse mirror image. California has an adequate solution to the problems commonly posed by anti-SLAPP burden-shifting procedures.^[15] In California, the anti-SLAPP burden-shifting process allows the trial court to examine evidence in a similar fashion to summary judgement.^[16] California, however, could learn from Vermont’s method of limiting the statute’s scope. The Vermont Supreme Court recently confined the statute to only protect petitioning activity on public issues.^[17] Thus, Vermont’s method closely tracks the statute’s original intent.^[18] Currently, California allows anti-SLAPP motions whether or not the First Amendment activity in question pertains to a public issue.^[19] Thus, in California, civil defendants routinely invoke the statute to defend causes of action that are not SLAPPs.^[20] Vermont, therefore, should amend its statute to emulate California’s burden-shifting language and jurisprudential interpretation, while California (and the rest of the country) could learn from Vermont’s attempt to limit the overly broad statutory scope. Half of Vermont’s approach and half of California’s approach creates an anti-SLAPP statute that will withstand constitutional challenge. 

Part I of this Note parses out the plain language of Vermont’s anti-SLAPP statute. Part II examines the constitutionality of Vermont’s anti-SLAPP burden-shifting procedure, explores how other states have interpreted the constitutionality of their anti-SLAPP burden-shifting language, proposes adopting California’s approach, and examines an alternative approach offered by Maine. Part III explores the scope of Vermont’s anti-SLAPP statute, the inadequacy of the solution offered by Massachusetts, California’s overly broad interpretation, and the limiting approach taken by Vermont. Finally, this Note concludes by offering a solution that combines half of the approach taken by California and half by Vermont to form one anti-SLAPP statute. 

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[1] See George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 3–4 (1989). (“Americans are being sued for speaking out politically . . . [t]he targets are typically not extremists or experienced activists, but normal, middle-class and blue-collar Americans, many on their first venture into the world of government decision making.”).

[2] Id. at 4.  

[3] Id. 

[4] Carson Hilary Barylak, Note, Reducing Uncertainty in anti-SLAPP Protection, 71 Ohio St. L.J. 845, 846 (2010).

[5] Id. at 847. 

[6] Id.

[7] Id. at 848. 

[8] See Duracraft Corp. v. Holmes Products Corp., 621 N.E.2d. 935, 940 (Mass. 1998) (“The typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens for speaking publically against development projects.”). 

[9] Id. at 942.

[10] See id. (“By protecting one party’s right to petition . . . the statute impinges on the adverse party’s exercise of its right to petition, even when not engaged in sham petitioning.”); Opinion of the Justices (SLAPP Suit Procedure), 641 A2d 1012, 1015 (N.H. 1994) (“A solution cannot strengthen the constitutional rights of one group of citizens by infringing upon the rights of another group.”).  

[11] See Opinion of the Justices (SLAPP Suit Procedure), 641 A2d at 1015. (“Unlike the procedures wherein the court does no resolve the merits of a disputed claim, the procedure in the proposed bill requires the trial court to do exactly that.”); Davis v. Cox, 351 P.3d 862, 874 (Wash. 2015) (“[Washington’s anti-SLAPP statute] creates a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial.”).

[12] VT. Stat. Ann. tit. 12 § 1041(1) (West 2005).

[13] Felis v. Downs Rachlin Martin, PLLC, No. 2015–092, 2015 WL 6061859, at *1 (Vt. Oct. 16, 2015).

[14] Pring, supra note 1, at 3. 

[15] See Wilbanks v. Wolk, 17 Cal. Rptr. 3d. 497, 508 (Cal. Ct. App. 2004) (“A plaintiff’s burden under section 425.16 is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgement.”).

[16] Id.

[17] Felis, 2015 WL 6061859, at *1.

[18] Id.

[19] Briggs v. Eden Council for Hope and Opportunity, 696 P.2d 564, 572 (Cal. 1999).   

[20] Jeremiah A. Ho, I’ll Huff and I’ll Puff—But Then You’ll Blow My Case Away: Dealing with Dismissed and Bad-Faith Defendants Under California’s anti-SLAPP Statute, 30 Whittier L. Rev. 533, 539 (2009).