Beware of New Tennessee Anti-SLAPP Legislation

Recently, the Tennessee Senate and General Assembly unanimously passed HB 0777/SB1097 otherwise known as the Tennessee Public Participation Act. On April 23, 2019, Governor Bill Lee signed the bill which will become effective on July 1, 2019. This statute dictates new anti-SLAPP (Strategic Lawsuits Against Public Participation) measures for all citizens of Tennessee. The Tennessee Public Participation Act will broadly increase the protections as outlined in the first paragraph of the bill summary below:

“Under this bill, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.”¹

The Tennessee Public Participation Act goes beyond Tennessee’s current anti-SLAPP Law (limited only to complaints made to government entities) and Tennessee’s “Loser pays” statute. Tennessee joins states such as California and Texas in passing comprehensive anti-SLAPP legislation.

Pros and Cons of the Tennessee Public Protection Act

Proponents of the bill state that this is an important measure to protect individual first amendment rights to free speech and to help reduce meritless lawsuits meant to stifle criticism and intimidate parties who may not have the resources to defend themselves in litigation. The new statute will allow a party to file a petition to seek dismissal of the defamation complaint, and the Presiding Judge can “stay” discovery proceedings (which can be costly for all parties) in order to first rule on the Petition to Dismiss under the new Anti-SLAPP law. If the lawsuit is dismissed during this proceeding, the Defendant may recover attorney’s fees. Additionally, proponents of this bill also applaud the increased protections given to journalists regarding the publication and dissemination of news information.

However, individuals opposed to anti-SLAPP laws note that this law will make it more difficult to obtain relief in a Court of law by providing excessive penalties for litigants who are only seeking judicial relief to restore or protect their reputation. Opponents may worry that individuals will now be able to make false and defamatory comments, then use this new law as a shield to avoid accountability and prevent defamed parties from seeking judicial redress.  Additionally, unlike Tennessee’s loser pays statute (which caps attorney’s fees at $10,000) there no longer appears to be a limitation on attorney’s fees. Therefore, if an anti-SLAPP case is filed and dismissed under the Tennessee Public Participation Act, a Plaintiff could be on the hook for paying a large amount of attorney’s fees in excess of $10,000.00. Litigants need to be aware of these consequences prior to filing or defending an anti-SLAPP lawsuit.

How the New Law Will Affect Social Media and Online Reviews

In today’s world, it is extremely easy for a consumer to write a negative online review against a business or individual. It is also easy for individuals to offer criticism in social media forums such as  Facebook and Twitter. The Tennessee Public Protection Act will offer broad protections for such individuals who vent on these platforms. It will also offer additional protections for consumers posting negative Yelp reviews, and other criticisms against businesses and individuals alike. As a result, citizens in Tennessee will now have broader free speech protections under this new anti-SLAPP statute. 

Regardless of your position regarding the law, all citizens need to be aware of this inevitable change prior to exercising their 1^st Amendment rights and/or considering filing or responding to a defamation lawsuit in Tennessee. Also, if you might be a party to a defamation lawsuit, be diligent about retaining an experienced and highly skilled defamation lawyer to represent you.

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¹ HB 0777 Bill Summary http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0777

² Tenn. Code Ann 20-12-119.

Roadmap of a Defamation Lawsuit