| Subgrades | |
| Covered Speech: | A- |
| Anti-SLAPP Procedures: | C+ |
| Subscores | |
| Covered Speech: | 90 out of 100 points |
| Anti-SLAPP Procedures: | 70 out of 100 points |
| Detailed Scoring on Anti-SLAPP Procedures | |
| Suspension of Court Proceedings Upon an Anti-SLAPP Motion: | 18 of 20 points |
| Burden of Proof on Plaintiff to Defeat an Anti-SLAPP Motion: | 12 of 12 points |
| Right to an Immediate Appeal: | 0 of 25 points |
| Award of Costs and Attorney Fees: | 40 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 0 of 3 points |
How to Improve Connecticut’s Score
While the state already has a reasonably strong anti-SLAPP law, it could be significantly improved with one minor change. The law does not include a right to an “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 ever be appealed.
As attorney Ken White has eloquently explained, the provision of a right of interlocutory appeal creates a strong protection for First Amendment liberties, because it “dramatically reduces the coercive effect of filing a lawsuit targeting speech.”
With this one change, the anti-SLAPP procedures subgrade would rise to A and the overall grade would rise to A-.
State Anti-SLAPP Statute
Connecticut’s anti-SLAPP statute[1] protects statements that are based on the exercise of constitutional rights of free speech, petition, or association in connection to a matter of public concern. (However, because the statute defines a matter of public concern as an issue related to “(A) health or safety, (B) environmental, economic or community well-being, (C) the government, zoning and other regulatory matters, (D) a public official or public figure, or (E) an audiovisual work,” this scope of coverage appears to exclude some kinds of speech.) Although discovery is stayed once an anti-SLAPP motion is filed, a court may nonetheless order that specified and limited discovery may be conducted upon its own motion or if good cause is shown. In order to prevail against an anti-SLAPP motion, the respondent must both provide the circumstances of the complaint with particularity and establish that there is probable cause to believe that the respondent will prevail at trial. The statute does not provide for a general right of interlocutory appeal of an anti-SLAPP motion: although it requires that any stay of discovery “shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof,” this language presumably refers only to those special and unusual circumstances in which the movant is permitted an interlocutory appeal.[2] Generally, a court must award costs and attorney fees to the prevailing movant on an anti-SLAPP motion; conversely, if the court finds the motion to be frivolous or solely intended to cause unnecessary delay, then it must award costs and attorney fees to the prevailing respondent.
[1] Conn. Gen. Stat. Ann. § 52-196a.
[2] See State v. Kemah, 289 Conn. 411, 423, n.13 (2008).
