The First Amendment right to freedom of speech and to petition the government for a redress of grievances are among the most fundamental rights Americans possess. But the free exercise of those rights is also vulnerable to litigation. Post a negative review of a business on a website like Yelp, write an op-ed in your local newspaper, testify during a government hearing—those are essential and protected First Amendment activities. But what you say there can make you the target of a lawsuit for defamation, libel or personal distress. 

A certain type of lawsuit, known as a strategic lawsuit against public participation (SLAPP) is designed to target protected First Amendment speech and other activities in an attempt to silence the speaker or punish them for carrying out a basic or essential service that may be related to their job. 

In 2017, Connecticut passed a law designed to protect individuals sued for protected First Amendment speech from the harm that can be caused by frivolous litigation. This investigation will examine the law, how it’s been applied, its evolution, and how well it protects speech.

In April 2023, Renee Cortland, a Hartford obstetrician was sued by a patient for one count of breaching doctor-patient confidentiality and one count of false imprisonment. The patient in the case, whose identity was sealed by a court, claimed to have had her urine tested for the presence of alcohol without her consent while receiving prenatal care in 2021. According to the complaint in the case, which Inside Investigator possesses but has since been sealed, a female patient identified as Rye N. told Cortland she occasionally had a glass of wine with dinner.  Despite warnings from her doctor about fetal alcohol syndrome and the possibility this could trigger a Department of Children and Families (DCF) investigation, she continued to do so throughout her pregnancy.

When Rye’s baby was born, the complaint alleges both mom and baby were healthy and both her urine and the baby’s urine tested negative for substances. But after a visit from Cortland to her hospital room, the complaint claims a physician told Rye she would have to meet with a social worker before being discharged. The social worker allegedly informed Rye that the consultation was a result of continuing to drink wine during her pregnancy despite a warning from the doctor. Follow-up visits were continued after the baby was brought home. After a 45-day investigation, the complaint states DCF closed the case, determining the allegations were unsubstantiated. Hartford Hospital also allegedly told Rye the hospital’s decision to report her to DCF was appropriate.

In October, Cortland filed a special motion to dismiss under a state law that expedites the legal process in cases where alleged harm is based on First Amendment activity. In it, Cortland argued that “[p]rotecting the health and safety of children is a matter of public concern” and that the state had acknowledged this by creating mandated reporter requirements for officials like doctors. Cortland’s motion argued that her actions were protected by the statute as a result. 

Earlier, other defendants in the case, including Hartford Hospital, also filed separate motions to dismiss but the legal argument in these has been redacted because the case has been sealed.

Hartford’s superior court granted the motion to dismiss the complaint on October 30, 2023. In part, the ruling found that Cortland the social worker involved in the case had “a reasonable, good faith basis to report the plaintiff’s drinking to DCF,” making them immune from liability under Connecticut’s mandated reporter statute. The plaintiff, the court continued, did not dispute that when that immunity existed it constituted a valid defense under Connecticut’s law protecting individuals who are sued for speech or actions protected by the First Amendment. For this reason, and for other reasons including a failure by the plaintiff to show probable cause she would prevail on the claim for false imprisonment, the court granted the special motion to dismiss. Rye has since filed an appeal.

The case brought against Cortland is, in the eyes of Hartford’s superior court, a strategic lawsuit against public participation (SLAPP.) Such suits are a type of civil lawsuit that targets protected First Amendment speech or activity by claiming that harm was done as a result of that protected speech.

“A SLAPP lawsuit is a lawsuit based on somebody else’s First Amendment rights: speech, petition, and association. Generally, those lawsuits are not necessarily aimed at winning but as a form of punishment against the person as a form of speaking out or petitioning the government in a way the plaintiff doesn’t like.” said Zach Phillips, a Connecticut-based trial and appellate lawyer who works on cases involving civil liberties.

Such suits are designed to intimidate or harass a defendant and waste their time and resources with the cost and bother of litigation. They also tend to have a chilling effect on speech, both for the individual who is sued and for others who might be considering engaging in similar types of speech.

Examples of a SLAPP lawsuit might involve such things as suing an individual for comments made in a public venue, such as during a public comment period or in testimony before a public body, reporting misconduct to public authorities, or contacting a public body with a complaint or concern that may require investigating, such as happened in the case against Cortland.

Other examples of SLAPP lawsuits can involve retaliation against journalistic pursuits, for example, if an individual who is covered critically in a story were to file a lawsuit against the writer or source in the story. SLAPP lawsuits have also been brought against individuals who have submitted letters to the editor of their local newspaper or who have otherwise spoken publicly.

SLAPP lawsuits often claim that these types of speech are defamatory. In a case recently heard by Connecticut’s supreme court, a political science professor at Trinity College sued a group of students who mocked a student group seeking campus recognition, for which he was serving as an advisor. Gregory Smith’s complaint notes a front-page article calling the group fascist was published in an April 1 edition of the student newspaper, calling it “purportedly a satirical and/or farcical issue.”

But Smith’s complaint alleged that the article’s contents were “made with actual malice, in that the Defendants knew that the published statements or statements were false, and/or published the same with reckless disregard to their falsity.” The complaint further alleged Smith had “suffered and would continue to suffer “significant and permanent injury” to his reputation, as well.

“Negative online reviews, heated online discussions, showing up at a municipal agency hearing and speaking out against something going on, sometimes those people [who are the subject of speech] will file a lawsuit and claim it’s defamatory. But it’s clearly targeted at speech they dislike.” explains Phillips.

While such speech is still protected by the First Amendment, meaning a defendant facing a SLAPP lawsuit is likely to prevail on the merits, litigation can be expensive, requiring a defendant to hire an attorney, and daunting, soaking up a defendant’s time and generating stress over the outcome.

That’s where anti-SLAPP statutes, which Phillips says try to protect defendants not just from liability but the lawsuit itself, come into play.

Connecticut’s anti-SLAPP statute went into place in 2018 after being unanimously passed by the legislature in 2017. In a nutshell, the law creates a special motion to dismiss that stays discovery and expedites termination if the suit seeks to punish a defendant for protected speech.

“In any civil action in which a party files a complaint, counterclaim or cross claim against an opposing party that is based on the opposing party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, such opposing party may file a special motion to dismiss the complaint, counterclaim or cross claim.” the statute reads.

For the purposes of the law, a matter of public concern is an issue related to health or safety; environmental, economic, or community wellbeing; the government, zoning, and other regulatory matters; a public official or public figure; or an audiovisual work.

The law is intended to protect individuals facing SLAPP lawsuits in the following way:

When a lawsuit is brought against an individual based on protected First Amendment rights—speech, association, petition of the government—or in connection with a matter of public concern, that individual can file a special motion to dismiss the complaint within 30 days. The court can extend the time to file a special motion to dismiss if there is good cause.

When a special motion to dismiss is filed, the court stays all discovery in the suit. That stay remains in effect until the court grants or denies the special motion to dismiss. The court, however, can still grant a party’s or its own motion to order “specified and limited discovery” relevant to the motion.

The court then conducts an expedited hearing on the special motion to dismiss, which occurs no later than 60 days from the date the motion was filed, unless there are extenuating circumstances.

In determining how to rule on the special motion to dismiss, the court looks at pleadings and supporting and opposing affidavits “attesting to the facts upon which liability or a defense, as the case may be, is based.”

The law directs the courts to grant the special motion to dismiss if the party who brought the motion can show by a preponderance of the evidence that the opposing party’s complaint (i.e., the SLAPP suit) is based on their protected First Amendment activities or as a matter of public concern. The only exception to such a ruling is if the person filing the SLAPP suit can show “with particularity” the circumstances that give rise to the complaint and show the court there is probable cause they will prevail on the merits.

Rulings on special motions are to be made “as soon as practicable.”

If the court grants a special motion to dismiss, the law directs it to award costs and attorney’s fees to the party who filed the special motion to dismiss. If the court denies the motion and deems it “frivolous and solely intended to cause unnecessary delay” the law directs it to award costs and attorney’s fees to the opposing party.

According to Phillips, who describes Connecticut’s anti-SLAPP statute as “pretty good,” staying discovery and the awarding of attorney’s fees are important elements of the law. “Discovery is often the most expensive part, especially in a lawsuit.” said Phillips. The law means that someone who is being sued for protected speech doesn’t have to deal with discovery until the special motion to dismiss is ruled on.

The law’s requirement that courts award attorney’s fees that are incurred in a lawsuit brought against protected speech also helps reimburse defendants who are sued simply for exercising their rights, Phillips added.

In addition, Phillips referenced several recent decisions from the Connecticut Supreme Court that established an immediate right to appeal in the event a court rules against a special motion to dismiss.

Connecticut’s anti-SLAPP law currently has an A- grade from the Institute for Free Speech (IFS), a non-profit organization that provides pro-bono legal services to people whose First Amendment rights are being threatened.

Previously, the organization scored the state’s law a B+ because, as written, it did not include a right to interlocutory appeal. “Speaking generally, that is a request to a higher court for it to decide a particular issue immediately. In most litigation, interlocutory appeals are difficult to obtain, so this right of appeal is an important feature of an anti-SLAPP law. Without it, a defendant who loses an anti-SLAPP motion would be forced to continue to litigate the entire trial before the finding on the motion could even be appealed.” IFS noted in its previous analysis of Connecticut’s law.

However, recent companion rulings from the Connecticut Supreme Court established that right does exist within the law. In Pryor v. Brignole, Smith v. Supple, and Robinson v. V.D, which were decided in May 2023, the court overturned lower court rulings holding that appeals needed to be delayed.

In Smith v. Supple, Gregory Smith, professor of political science and philosophy at Trinity College in Hartford circulated a letter to fellow faculty that criticized the school’s policies. A group of students were able to obtain a copy of it in March 2019.

In the spring of 2019, a separate group of students created a club inspired by a nonprofit focused on Western civilization and tradition, which Smith had founded. Smith also served as the club’s faculty adviser. The club applied to the school’s student government for recognition and was met with protestors. On April 1, 2019, a student newspaper published a satirical issue featuring an article that claimed the school was considering a fascist society. The article featured Smith’s photo, quotes from a Facebook post Smith authored, and the logo of his institute.

The plaintiffs, including Smith, brought legal action against the Trinity students who had published the article alleging libel per se, libel per quod, and negligent infliction of emotional distress. The defendant students filed a special motion to dismiss under the state’s anti-SLAPP law arguing the plaintiff’s claims were based on their Free speech rights.

The trial court denied the special motion, finding the defendants failed to meet their burden under the law because their communications were not made in a public forum and because Trinity, a private college, did not qualify as a state actor for the purposes of triggering First Amendment protections.

The case ended up before the state supreme court, where the defendants argued an appealable final judgment exists through Connecticut general statute and caselaw because “an interlocutory appeal is necessary to protect the statutory right to the dismissal of a SLAPP suit.”

In its ruling, the Connecticut supreme court wrote that the purpose of “the “extraordinary remedy” provided by the anti-SLAPP statute persuades us that its substantive benefit—a right to avoid costly and burdensome litigation on the merits—would be lost if defendants were required to litigate putative SLAPP cases to conclusion following the erroneous denial of a special motion to dismiss.” They transferred the appeal to the state appellate court for further proceedings, establishing a right to appeal before the conclusion of the lawsuit.

Pryor v. Brignole involved a dispute between the plaintiff, an attorney, and the defendant, a law firm at which the plaintiff had been employed. The plaintiff sought damages for breach of a non-disparagement clause in their contract. The plaintiff alleged the defendant, owner of the law firm in question, sent anonymous letters detailing crimes they supposedly committed to local media and “opined that the plaintiff’s conduct was of public concern because it implicated his fitness to practice law.”

The defendants filed a special motion to dismiss under the state’s anti-SLAPP law but the trial court denied it, concluding “they could not meet their initial burden of showing, by a preponderance of the evidence,” that they were being sued because they had exercised their First Amendment rights. The owner of the law firm denied sending the anonymous letters, which the trial court found to mean the defendant had not engaged in any speech. 

The defendants appealed the decision to the state appellate court. But the appeals granted the plaintiff’s motion to dismiss for lack of a final certification. The defendants then appealed to the state supreme court, which found the appellate court improperly dismissed the defendants’ appeal.

The court’s finding referenced the Smith v. Supple ruling, noting it found a right to immediate appeal in cases where defendants can assert a colorable claim—a claim strong enough to have a reasonable chance of being found valid—that a trial court’s denial of a special motion to dismiss placed their right to avoid litigation on the merits at risk.

The supreme court’s majority found that, in Pryor v. Brignole, the defendants’ special motion to dismiss invoked the anti-SLAPP statute by claiming the plaintiff’s complaint was based on protected free speech rights. The court determined that, under the law’s interpretation, it was “well established that the commission and prosecution of a crime, and the resulting judicial proceedings, are events of legitimate concern to the public.” As a result, the majority found, that whether the defendant had actually written the letters in question was of no consequence since the trial court’s analysis of whether to grant a special motion to dismiss turned “on the nature of the statements alleged in the plaintiff’s complaint.”

As a result, the majority concluded the defendants had asserted “at least a superficially well-founded claim” that the alleged sending of the letters to the media “could be considered conduct furthering communication in a public forum on a matter of public concern.” The court concluded that denial of a special motion to dismiss was appealable and remanded the case to the appellate court for further proceedings.

Robinson v. V.D. involved civilian employees at the U.S. Coast Guard Academy. The defendant, V.D., was employed as a carpenter and mason and was temporarily employed as a construction control inspector in 2019. After failing to obtain it, the defendant filed a union grievance alleging that Michael and Mary Robinson, the plaintiffs who also work at the academy, had a quid pro quo arrangement with the candidate who was selected for the job and the official responsible for hiring for the position. The defendant also alleged he did not receive the job because of his union affiliation. A Coast Guard investigation cleared the Robinsons of wrongdoing.

In June 2020, both the Robinsons and V.D. attended a competitive shooting event and Michael Robinson and the defendant had a verbal altercation in the parking lot, leading the defendant to apply for a protective order, which was dismissed by a court.

In December 2020, the Robinsons filed a lawsuit against the defendant, alleging V.D. had made false allegations against them on numerous occasions. They claimed defamation, invasion of privacy by false light, vexatious litigation, and intentional and negligent infliction of emotional distress. The next month, the defendant filed a special motion to dismiss alleging the claims arose from his rights of free speech, to petition the government, and to associate with a labor union. 

The trial court denied the special motion to dismiss, finding the defendant’s conduct was not protected by Connecticut’s anti-SLAPP statute because it addressed private concerns, and that the work-related grievance process was personal in nature.

As with Pryor v. Brignole, the case’s primary issue—whether the denial of the special motion to dismiss was an appealable final judgment under the anti-SLAPP statute—hinged on the supreme court’s decision in Smith v. Supple. The state supreme court concluded that the defendant had asserted a colorable claim that some of the statements in the plaintiffs’ complaint, including those related to the grievance process, were based on his right to petition the government. They also found he had asserted a colorable claim that his statements made during the grievance process were a matter of public concern because they touched on hiring practices by a government entity.

“Accordingly, we conclude that the defendant has asserted a colorable claim to a right to avoid litigation under our anti-SLAPP statute.” the court wrote, also concluding the trial court’s denial of the special motion to dismiss was appealable. The case was referred back to the appellate court.

The state supreme court’s clarification that a right to interlocutory appeal is part of Connecticut’s anti-SLAPP statute has improved the law’s protections. However, the statute still has some potential shortcomings according to Phillips.

Chief among these is that Connecticut generally allows a plaintiff to withdraw a lawsuit without consequences before a trial occurs. That means that if a plaintiff files a SLAPP lawsuit and the defendant files a special motion to dismiss the plaintiff can simply withdraw the lawsuit without consequences. While this does still eliminate the lawsuit, which is good for the defendant and their protected First Amendment rights, it does suggest there is a loophole in the law that eliminates its primary function: providing reimbursement. 

Even if a SLAPP suit ends following a special motion to dismiss, the defendant still will need an attorney, unless they choose to represent themselves, to file that motion, meaning they would bear the cost of filing and attorney’s fees to that point. Such an approach—filing a SLAPP lawsuit with the intention of terminating it after a special motion to dismiss is filed—still has the potential to cause the same harms as a SLAPP lawsuit that goes through to its conclusion, namely imposing financial burdens, causing stress, and potentially chilling speech.

Assuming this does not happen, and a defendant receives a favorable ruling on a special motion to dismiss, they can potentially recoup attorney’s fees not just for the cost of the special motion, but for other fees incurred as a result of the legal action.

In an initial test of the anti-SLAPP law shortly after it went into effect, the state’s superior court found that the statute does not limit the attorney’s fees a defendant may recover to the special motion to dismiss.

Cronin v. Pelletier involved a complaint brought by Thomas Cronin, an employee of EastConn who was up for consideration for a promotion, and defendant Paul Pelletier, who published a letter to the EastConn Board of Directors that contained statements about Cronin he maintained were libelous. The superior court granted Pelletier’s special motion to dismiss, presented on the grounds that Cronin’s statements were protected speech connected to a matter of public concern.

After granting the special motion to dismiss, in considering how attorney’s fees should be reimbursed, the court looked to the state’s rules for professional conduct for attorneys, which outline factors to be considered in determining if attorney’s fees are reasonable. 

Among the factors the court looked at were: the time and labor required, the novelty and difficulty of the legal questions, the skills required to properly perform the legal service, the customary fee for similar work in the community, the amount involved and the results obtained. The court also noted in its decision that the anti-SLAPP statute “encompasses all work performed by defense counsel arising from the case and not merely work done in conjunction with the special motion to dismiss.” Specifically, the statute notes that courts should award costs and reasonable attorneys fees, “including such costs and fees incurred in connection with the filing of the special motion to dismiss.”

The court ultimately awarded the defendant attorney’s fees to the tune of $13,832, rejecting a rate increase the attorney charged in the middle of the case and declining to award attorney fees for work undertaken in an effort to secure the actual reimbursement of fees.

Whether Connecticut’s anti-SLAPP statute applies in federal court is an open question. Varying federal courts have issued conflicting opinions about whether state anti-SLAPP statutes apply in federal lawsuits and Connecticut’s is no different.

The downside to the state’s anti-SLAPP laws not being applicable in federal court is it takes away a defendant’s ability to file a special motion to dismiss. Normal federal rules still apply, however, and a defendant can still a motion to dismiss or a motion for summary judgment in a case, but it’s not likely to conclude as quickly and, in the event they prevail, they will not be awarded attorneys’ fees. 

Federal courts have tended to consider procedural anti-SLAPP laws in conflict with the Federal Rules of Civil Procedure, which govern how federal courts should act in civil cases. Connecticut’s anti-SLAPP law is primarily procedural. It does not make any substantive changes to the underlying claims in a lawsuit. And it therefore may be inapplicable under federal law.

Whether such statutes apply in federal cases has been split between circuits. The United States District Court for the Second Circuit, which has jurisdiction over Connecticut, has also presented mixed decisions about whether the state’s anti-SLAPP motion applies. In several cases, the Second Circuit has at least ultimately considered the question of whether to grant a special motion to dismiss, rather than rejecting the question outright, if it involves an action based on protected speech. In Adelson v. Harris, which saw casino magnate Sheldon Adelson bring a libel suit against the National Jewish Democratic Council over claims the group made through hyperlinks in a petition to have Mitt Romney reject contributions from Adelson during the 2012 presidential race, the court ultimately affirmed the Nevada Supreme Court’s dismissal of Adelson’s defamation suit. However, it has not directly ruled on the applicability of Connecticut’s statute. Nor has the Supreme Court taken up the issue of whether state anti-SLAPP statutes can be applied in federal court.

According to Phillips, another advantage to Connecticut’s legal system is that a defendant gets an evidentiary hearing. That means evidence is not limited to what a plaintiff claims in a complaint. A defendant is able to introduce new evidence. Phillips says this is helpful because “creative” plaintiffs can plead in a way that avoids a motion to dismiss, but a defendant’s ability to introduce their own evidence helps mitigate this. 

The federal government has yet to pass an anti-SLAPP law.

As of the end of 2023, Connecticut is one of 33 states plus the District of Columbia that have anti-SLAPP laws in place. But while the laws have proven popular as a way to protect speech, they are not without issues. While recent court rulings establishing Connecticut’s law contains a right to interlocutory appeal have strengthened anti-SLAPP procedures in Connecticut, other laws—including those elsewhere in New England—don’t go so far to protect speech.

Connecticut’s law is rated as one of the best in the region by IFS. Only Vermont’s law outscores it. Nearby Massachusetts receives only a D+ score from IFS because it is not sufficiently broad. 

The statute covers “any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.” But Massachusetts courts have limited the law’s applicability, both by ruling that it does not apply to statements unrelated to the right to petition and by finding that an anti-SLAPP motion can be defeated if it can be shown it was not primarily brought to chill a right to petition.

Anti-SLAPP statutes in several states have also been struck down on the grounds that they violated their respective states’ constitutions. Minnesota’s law was struck down by an appellate court in 2016 on the grounds that the law deprived the party who did not file a motion to dismiss of the right to a jury trial “by requiring the court to make pretrial factual findings to determine whether the moving party is immune from liability.” In 2017, Minnesota’s higher court affirmed the finding that the law violated the right to a trial spelled out in the state’s constitution.

Washington’s initial anti-SLAPP statute was struck down on similar grounds that it violated the right to a trial by jury but the state passed an updated law in 2021, allowing a motion for summary judgment to be brought before the discovery process began and sidestepping the constitutional issue.

States have generally strengthened anti-SLAPP laws in recent years, either via legislation or, as Connecticut has done, in the courts. In the future, continuing threats to speech from SLAPP suits are likely to come at the federal level. Not only is there no legal consensus about whether state statutes can be applied federally, but Congress has yet to pass federal anti-SLAPP legislation.

Among prominent examples of federal SLAPP cases is former representative Devin Nunes of California suing the owners of anonymous X, formerly Twitter, accounts for criticizing him and separately suing journalists who reported unfavorably on him.

Federal anti-SLAPP legislation has been introduced multiple times but has yet to advance in Congress.

“Wealthy and powerful corporate entities are dragging citizens through meritless and costly litigation, to expose anyone who dares to stand up to them to financial and personal ruin,” Rep. Jamie Raskin, D-Maryland, said at a 2022 hearing announcing a federal anti-SLAPP statute. 

Republish This Story

Republish our articles for free, online or in print, under a Creative Commons license.