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The Tennessee Conservative Staff –
A recent ruling by the Tennessee Supreme Court has raised concerns among free speech advocates regarding the state’s anti-SLAPP law.
The court unanimously determined that defendants claiming to be victims of a Strategic Lawsuit Against Public Participation (SLAPP) are not entitled to recover their litigation costs if the plaintiff dismisses the case right before a hearing under the Tennessee Public Participation Act (TPPA).
SLAPP suits are typically used to intimidate individuals into silence through the threat of costly legal action, thereby infringing upon First Amendment rights. The TPPA was designed to provide protection against such cases by enabling judges to dismiss them early in the process, preventing prolonged litigation that can impose significant financial burdens on defendants.
The new ruling comes after the case of Robert Flade v. City of Shelbyville, where Flade, a Shelbyville landowner, voluntarily dismissed his lawsuit against several individuals for allegedly making disparaging comments on social media, just before a TPPA hearing.
This decision effectively allows plaintiffs to prolong litigation until the last moment, thereby sidestepping the protections offered by the 2019 law and leaving defendants to shoulder hefty legal costs.
Free speech experts argue that high litigation costs can stifle public discourse, making individuals wary of speaking out against influential plaintiffs, which often include wealthy corporations or individuals.
Nashville free speech attorney Daniel Horwitz, who argued against the plaintiffs in the recent ruling, noted, “As Tennessee’s Court of Appeals has explained, ‘the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.’”
Horwitz further pointed out that the costs of defending against a SLAPP suit can exceed $25,000, and in some cases, escalate much higher. He warned that the ruling could hinder attorneys from accepting contingency fee arrangements for defending against SLAPP suits.
“Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees,” he said. “Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule.”
David Keating, president of the Institute of Free Speech, called the ruling “disappointing,” but noted it is not an isolated incident. He pointed to Oregon, which had a similar law before amending it in 2023 to close a loophole that allowed plaintiffs to avoid paying defendants’ attorney fees by dismissing cases at the last minute.
Oregon’s revised law mandates that plaintiffs cannot evade financial responsibility for defendants’ legal costs after filing a SLAPP suit and then withdrawing it. This reform has earned Oregon an “A+” rating on the Institute for Free Speech’s Anti-SLAPP report card, which evaluates states on their anti-SLAPP protections.
Currently, Tennessee ranks 12th in the nation for its anti-SLAPP measures, thanks to the 2019 law, and is among only 17 states with an “A” rating. However, the recent ruling could jeopardize this standing.
“Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and — recognizing that one’s claims have no chance of prevailing — dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter,” Horwitz emphasized.
2 Responses
I am appalled at how quickly the Great State of Tennessee is turning blue. What is going on?
Good lord! Its as if logic doesnt exist in the legislature. Tennessee please, i know that having to effectively babysit your elected representatives shouldn’t be a a daily task but we are put in to positions where we have no choice but to babysit them and essentially MICROMANAGE them. ♀️