Anti-SLAPP statutes give a defendant a fast way to kill a lawsuit that was filed to punish protected speech rather than to win on the merits. A SLAPP — Strategic Lawsuit Against Public Participation — is a meritless suit meant to drain the defendant financially until they go quiet. Roughly 40 states have anti-SLAPP laws that let the defendant file an expedited motion to dismiss, force the plaintiff to produce real evidence, and collect attorney’s fees when the plaintiff cannot. The details differ by state, but the architecture is the same everywhere the statute exists: identify protected activity, shift the burden to the plaintiff, and shift the cost of the litigation if the plaintiff falls short.
What Activity the Statutes Protect
Anti-SLAPP protection generally reaches three overlapping categories of conduct.
The first is speech connected to a government proceeding. Testimony at a city council meeting, comments submitted during a regulatory review, evidence given in an official investigation, and statements tied to any legislative, executive, judicial, or administrative proceeding all sit inside this protection.
The second is speech on a matter of public concern. Courts read “public concern” broadly: topics affecting a significant part of a community, the conduct of public officials, and institutional accountability all qualify. Online reviews of businesses, community blog posts about development, and journalism questioning government decisions have all been protected. The Uniform Public Expression Protection Act, the leading model legislation, defines its scope to include the exercise of free speech, press, assembly, petition, or association rights on any matter of public concern.1Media Law Resource Center. href=”https://medialaw.org/wp-content/uploads/2022/05/UPEPA-with-comments.pdf” target=”_blank” rel=”noopener”>Uniform Public Expression Protection Act
The third is petitioning the government: organizing protests, circulating petitions, filing complaints with regulators, and suing government entities. Retaliatory litigation aimed at these activities is exactly what the statutes were written to stop.
How the Motion Is Filed
A defendant who believes the lawsuit is a SLAPP files what most statutes call a special motion to strike or a special motion to dismiss. The filing window is short. The UPEPA sets a 60-day deadline from the date of service, with an extension available for good cause, and many state statutes track a similar timeline.2Media Law Resource Center. Uniform Public Expression Protection Act
Filing the motion usually triggers an automatic stay of discovery. The plaintiff cannot demand documents, schedule depositions, or serve interrogatories while the motion is pending. Without that freeze, a plaintiff could bury the defendant in discovery costs during the weeks before the hearing and defeat the whole point of the expedited process. Courts can lift the stay, but only if the plaintiff shows good cause.
Most statutes also block the plaintiff from amending the complaint once the motion is filed. Otherwise a plaintiff could simply rewrite around the motion and force the defendant to start over. The court then schedules a hearing, reviews the pleadings and supporting declarations, and rules before the case moves any deeper.
The Two-Step Burden-Shifting Test
Every anti-SLAPP statute runs on the same two-step framework. Understanding it matters more than any other procedural detail.
Step One: Does the Suit Target Protected Activity
The defendant moves first. They must show that the lawsuit arises from conduct falling within one of the statute’s protected categories: speech in a government proceeding, speech on a public issue, or petitioning activity. This is usually not a heavy lift. The defendant points to the specific statements or conduct the plaintiff is suing over and shows they fall within the statute. A social media post criticizing a local business, testimony at a zoning hearing, or a letter to a government agency will typically satisfy this step. Fail here and the motion is denied.
Step Two: Can the Plaintiff Prove a Real Case
Once the defendant clears step one, the burden flips. The plaintiff must show a probability of prevailing by establishing a prima facie case, meaning enough admissible evidence supporting every essential element of the claim to survive judicial scrutiny.3United States Court of Appeals for the Ninth Circuit. Gunn v Drage For a defamation claim, that means evidence of a false statement of fact, publication to a third party, fault, and damages. For intentional infliction of emotional distress, it means evidence of extreme and outrageous conduct plus severe emotional harm.
This is where most SLAPP suits collapse. Vague allegations, speculative harm, and the bare assertions in the complaint are not enough. The plaintiff needs actual evidence — declarations, documents, recordings — that a jury could credit. If that evidence does not appear, the court dismisses the case. Under the UPEPA the dismissal is with prejudice, meaning the plaintiff can never refile the same claim.2Media Law Resource Center. Uniform Public Expression Protection Act
When the Motion Is Granted
A granted anti-SLAPP motion ends the lawsuit. Under most statutes the dismissal is with prejudice, permanently barring the plaintiff from refiling the same claim. That finality is the point.
The financial consequence for the plaintiff matters just as much. Most anti-SLAPP statutes require the court to award attorney’s fees, court costs, and litigation expenses to the prevailing defendant. The UPEPA makes this award mandatory rather than discretionary.2Media Law Resource Center. Uniform Public Expression Protection Act A handful of states leave the fee decision to the judge, which weakens the deterrent effect. The award can be substantial and is enforceable through standard collection methods like any other court judgment.
When the Motion Is Denied
If the court denies the motion, either because the lawsuit did not target protected activity or because the plaintiff met the evidentiary burden, the case moves forward as ordinary litigation. The discovery stay lifts and the plaintiff can begin requesting documents and depositions.
A defendant who loses the motion usually does not face a fee award. Fee-shifting against the defendant kicks in only if the court finds the motion itself was frivolous or filed solely to delay the proceedings.2Media Law Resource Center. Uniform Public Expression Protection Act A good-faith motion that simply does not succeed will not trigger penalties. That asymmetry is deliberate. It encourages defendants to use the statute without fearing punishment for trying.
The harder question after denial is whether the defendant can appeal immediately or must wait until the whole case ends. Several states grant a statutory right to interlocutory appeal, letting the defendant challenge the ruling before enduring a full trial. Federal court is different. The Ninth Circuit recently overruled its own prior precedent and held that denial of an anti-SLAPP motion does not qualify for immediate appeal under the collateral order doctrine, so defendants there must wait for a final judgment.4United States Court of Appeals for the Ninth Circuit. Gopher Media LLC v Melone
Exemptions That Block the Motion
Anti-SLAPP statutes do not protect every defendant in every case. Most states carve out categories of lawsuits that cannot be dismissed through the expedited process, even when the underlying conduct technically involves speech.
The most common exemption is commercial speech. When a business makes factual claims about its own or a competitor’s products to promote sales, that speech typically falls outside the statute. A company running misleading advertising should not be able to escape a lawsuit by calling its ads protected public expression. This exemption generally requires that the statement was made by a business to actual or potential customers about its own goods or services.
Government enforcement actions are another widespread exemption. When a state attorney general or a regulator sues to enforce the law, the defendant cannot use an anti-SLAPP motion to knock the case out. The statute is designed to protect people from private litigants abusing the courts, not to shield anyone from legitimate oversight.
Several states also exempt public interest lawsuits, along with claims involving bodily injury, trade secret misappropriation, insurance disputes, and family law proceedings. The exemptions vary widely by jurisdiction, so a defendant should check whether the state’s statute contains one that would block the motion before investing in the filing.
Anti-SLAPP in Federal Court
There is no federal anti-SLAPP statute. When someone is sued in federal court on a federal claim like copyright infringement, no expedited dismissal mechanism exists unless the court is willing to apply a state’s anti-SLAPP law. Whether that happens depends on the circuit.
The First and Ninth Circuits have held that state anti-SLAPP motions can be used in federal court, reasoning they do not conflict with the Federal Rules of Civil Procedure. The Second, Fifth, Eleventh, and D.C. Circuits have gone the other way, holding that state anti-SLAPP procedure clashes with Federal Rules 12 and 56 and cannot be applied. The Supreme Court has not resolved the split, so the availability of anti-SLAPP protection in federal court is a matter of geography.
The inconsistency creates a forum-shopping problem, especially for online speech. A plaintiff who wants to avoid an anti-SLAPP motion can file in a jurisdiction with weak or nonexistent protection. Defense counsel facing that situation may consider seeking a venue transfer, though that strategy carries its own costs.
The Uniform Public Expression Protection Act
To address the patchwork of inconsistent state laws, the Uniform Law Commission developed the Uniform Public Expression Protection Act. The UPEPA offers a standardized framework any state can adopt, harmonizing the filing deadline, burden-shifting test, fee-shifting rules, and scope of protected activity.2Media Law Resource Center. Uniform Public Expression Protection Act
As of early 2026, 15 states have adopted the UPEPA or legislation closely modeled on it, with recent adoptions in Michigan and Ohio. The act sets a 60-day filing deadline, requires dismissal with prejudice when the plaintiff cannot meet the evidentiary burden, and mandates fee-shifting to the prevailing defendant. It protects speech in government proceedings, speech on issues under governmental review, and the exercise of free speech, press, assembly, petition, or association rights on matters of public concern.2Media Law Resource Center. Uniform Public Expression Protection Act
Adoption matters because it narrows the gaps that plaintiffs exploit through forum shopping. When neighboring states have comparable protection, filing across a state line to dodge an anti-SLAPP motion becomes less useful. A standardized, modern statute is also harder for federal courts to reject as incompatible with the Federal Rules than an older, idiosyncratic state law.
SLAPPback Claims
After defeating a SLAPP suit, the defendant may have grounds to bring a malicious prosecution claim against the original plaintiff. These follow-up actions, sometimes called SLAPPback suits, require the defendant to prove that the original lawsuit was filed without probable cause, was motivated by malice, and caused actual damages. The successful anti-SLAPP dismissal can serve as evidence of favorable termination, one of the key elements.
SLAPPback suits are uncommon in practice. Proving lack of probable cause is a high bar, malice adds another, and the fee award from the anti-SLAPP motion may already compensate the defendant for much of the financial harm. In cases where the original SLAPP was especially egregious, filed by a well-funded party against an individual with a clear intent to silence them, the malicious prosecution route offers accountability that goes beyond fee recovery.