| Subgrades | |
| Covered Speech: | A+ |
| Anti-SLAPP Procedures: | B- |
| Subscores | |
| Covered Speech: | 100 out of 100 points |
| Anti-SLAPP Procedures: | 73 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: | 3 of 3 points |
How to Improve Oregon’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
Oregon’s anti-SLAPP statute[1] protects “(1) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law; (2) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law; (3) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or (4) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Although discovery is stayed once an anti-SLAPP motion is filed, a court may nonetheless order specified discovery to be conducted if good cause is shown. After an anti-SLAPP motion is filed, the movant must make a prima facie showing that the claim arises from conduct encompassed by the anti-SLAPP statute; if the movant is successful, then the burden shifts to the respondent to establish the probability of prevailing through the presentation of substantial evidence to support a prima facie case. The statute does not provide for the interlocutory appeal of a decision on an anti-SLAPP motion. The court must award costs and attorney fees to the anti-SLAPP movant if it orders dismissal of an action; alternatively, if it finds that the anti-SLAPP motion is frivolous or solely intended to cause unnecessary delay, it must award costs and attorney fees to the respondent. In general, the anti-SLAPP statute instructs courts that interpret its language to do so “liberally” – an instruction presumably designed to foil readings of the statute in a cramped or narrow way that would exclude marginal cases.
[1] Or. Rev. Stat. § 31.150 through § 31.155.
