We wish we could assure you that the law provides powerful protection for victims of malicious defamation lawsuits. Unfortunately, that isn’t the case. You do, however, have a few options for fighting back and perhaps at least recovering your legal expenses.
A SLAPP (Strategic Lawsuit Against Public Participation) is a meritless lawsuit intended to intimidate or silence critics. Anti-SLAPP legistlation provides strong protection against lawsuits that target discussion of matters of public concern or public interest. If you’re lucky enough to live in a state with anti-SLAPP legislation, that is likely your best option.
A typical anti-SLAPP statute requires the defendant to show that the lawsuit has no meaningful chance of succeeding at trial. If you succeed, the judge can immediately terminate the lawsuit and require the plaintiff to pay your legal expenses.
Filing an anti-SLAPP motion typically halts any further discovery until the motion has been resolved. In addition, anti-SLAPP legislation typically provides the right to an immediate appeal if the initial motion is not successful.
Washington passed new anti-SLAPP legislation in 2021, thanks in part to the efforts of our legal advisor, Bruce Johnson. Thank you for making us all safer, Bruce!
Unlike most other countries, the United States generally does not require the losing party in a lawsuit to pay the prevailing party’s legal expenses. This means that if you don’t live in a state with anti-SLAPP legislation, being sued is very expensive even if you win.
Other than using anti-SLAPP legislation, there are three tools that might allow you to recover your costs:
Many umbrella, homeowners, and renters insurance policies cover defamation cases. If you think you’re at risk of being sued for defamation it’s worth checking your policy and possibly switching to a policy that provides defamation coverage if your current one doesn’t.
Be careful, though: many insurance policies are very restrictive and only cover “unintentional” defamation that was made while you were inside your house.
In very rare cases, you might be able to counter-sue the plaintiff for malicious prosecution after you win the original suit. You will need to prove that:
Washington is fairly restrictive: malicious prosecution is only available as a tort claim in cases where someone was arrested or property was seized.
It occasionally happens that information surfaces during a lawsuit that can subsequently be used to support criminal charges:
There are some complicated issues here, including the 5th amendment protection against self incrimination.