"For years, we’ve talked about the importance of anti-SLAPP laws that help quickly toss out lawsuits whose sole purpose are to silence critics. A key point that we’ve made is the need for a federal anti-SLAPP law, because until then, we’re at the mercy of a patchwork of state laws. Some states have no anti-SLAPP law. Some have weak ones. A few have strong ones. In just the past month alone we’ve discussed Florida strengthening its anti-SLAPP law, and Nevada’s attempt to weaken its anti-SLAPP law. Meanwhile, a court in DC issued a ruling that greatly limited the effectiveness of DC’s anti-SLAPP law.
And now… Washington State has just ruled its anti-SLAPP law unconstitutional. The full ruling is worth reading, but if you want to dive deep, Ken “Popehat” White has excellent “lawsplainer” as well. In short, this particular anti-SLAPP had a feature unlike most others — and that was the problem. Basically, it requires the plaintiff “to establish by clear and convincing evidence a probability of prevailing on the claim.” Most states, on the other hand, use lesser standards, involving “sufficient” evidence or something similar. The problem, as the Washington court ruling notes, is that by making the standard “clear and convincing” it requires the judge to weigh the evidence. And that’s a problem, the court decided, because then the judge is effectively acting as a jury — thus depriving the plaintiff of a constitutionally guaranteed jury trial:"
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