| Subgrades | |
| Covered Speech: | D- |
| Anti-SLAPP Procedures: | A |
| Subscores | |
| Covered Speech: | 20 out of 100 points |
| Anti-SLAPP Procedures: | 94 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: | 25 of 25 points |
| Award of Costs and Attorney Fees: | 36 of 40 points |
| Expansive Statutory Interpretation Instruction to Courts: | 3 of 3 points |
State Anti-SLAPP Statute
Illinois’s anti-SLAPP statute,[1] the Citizen Participation Act, protects any act that furthers the rights of petition, speech, association, or participation in government, unless those acts are not genuinely aimed at procuring favorable government action, result, or outcome. (Illinois caselaw suggests that the statute operates only on meritless or retaliatory claims with no other basis that are “solely based on” protected speech.[2]) Although discovery is suspended once an anti-SLAPP motion is filed, a court may nonetheless order that discovery be conducted on the issue of whether the anti-SLAPP statute provides immunity to the movant if good cause is shown. To prevail against an anti-SLAPP motion, the respondent must produce clear and convincing evidence that the acts of the movants are not immunized from liability (or are not in furtherance of acts immunized from liability) by the anti-SLAPP statute. The statute requires the appellate court to expedite the movant’s appeal on the motion, whether interlocutory or not. This right of appeal covers both the trial court’s denial of an anti-SLAPP motion and its failure to rule on an anti-SLAPP motion. The court must award costs and attorney fees to the prevailing movant on an anti-SLAPP motion. 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.
How to Improve Illinois’s Score
The most important part of anti-SLAPP law is the scope of speech that the statute covers. After all, strong statutory procedural protections are of no help to a speaker if the scope of the statute excludes the speech at issue.
The fundamental flaw in Illinois’s anti-SLAPP statute is it covers too little speech. If Illinois simply expanded the scope of its statute to cover the same kinds of speech recommended by the Uniform Law Commission’s model Act, the overall grade would rise to A+.
The Uniform Law Commission’s model law protects any speech about a matter of public importance in any forum. The model is explained in the full report and is available here.
[1] 735 Ill. Comp. Stat. 110/15 through 110/99.
[2] Sandholm v. Kuecker, 962 N.E.2d 418, 2012 IL 111443 (Ill. Jan. 20, 2012).
