United States: Kansas Public Speech Protection Act

In 2016, and with very little fanfare, the Kansas Legislature enacted the Kansas Public Speech Protection Act ("KPSPA"). The KPSPA is a legislative response to organizations that use legal action to intimidate individuals who cannot afford to defend their rights. This legislation is classified as an anti-SLAPP act. Here is some of the information that employers should know about the Act.

What is a SLAPP action?

Strategic lawsuits against public participation ("SLAPP") are a class of lawsuits used to silence criticism by burdening critics with the cost of a legal defense. In SLAPP actions, one party uses the legal system to disparage critics, whistleblowers, or activists from exercising their constitutional right to free speech. Generally, SLAPP actions are filed by entities or individuals with deep pockets, such as businesses, government officials, and other associations. SLAPP claims work by exploiting the economic reality of litigation costs. Often times, the goal of a SLAPP lawsuit has nothing to do with winning the lawsuit. Instead, SLAPP actions seek to stifle free speech by draining the financial resources of a person who is making damaging statements, to the point that the person abandons their oppositional speech. In fact, some SLAPP actions are entirely meritless and frivolous.

How does a SLAPP lawsuit work?

SLAPP actions can be based on various legal theories, but the most common SLAPP action is rooted in defamation. In a legitimate defamation lawsuit, a plaintiff sues the defendant for making a false and harmful statement about the plaintiff. However, in a defamation-type SLAPP lawsuit, a corporation may file a lawsuit for truthful statements. For example, a corporation may file a defamation lawsuit against an employee who has truthfully reported the corporation for engaging in unfair business practices with the goal of pushing the employee into an early settlement to avoid the cost of litigation. In a true SLAPP action, the corporation would do so even if it knows that the employee would ultimately prevail at trial. Other SLAPP lawsuits may include claims for interference with a contract, malicious prosecution, conspiracy, and nuisance.

SLAPP lawsuits have many negative effects on our society. SLAPP lawsuits are used to prevent consumers from reporting dangerous products, to silence whistleblowers, to impede news outlets from reporting, and to allow government agencies to abuse their power. To combat SLAPP lawsuits, many states, including now Kansas, have adopted anti-SLAPP statutes.

What is the purpose of an anti-SLAPP act?

The goal of anti-SLAPP acts is to prevent entities from using the court systems to silence legitimate criticisms. Anti-SLAPP acts generally accomplish this goal in two ways. First, anti-SLAPP acts provide an early mechanism for the dismissal of meritless SLAPP claims. Second, awards for attorneys' fees and court costs are authorized by many acts. Therefore, anti-SLAPP acts typically minimize the cost of litigation and allow individuals who defend their right to recover their costs.

The Kansas legislature enacted the anti-SLAPP act to:

However, the Kansas anti-SLAPP act is not a license to freely defame organizations or interfere with business dealings. The Kansas anti-SLAPP act will not prevent organizations from pursuing legitimate legal claims to recover for cognizable legal harm.

What conduct is subject to the Kansas Public Speech Protection Act?

Because the KPSPA went into effect in July 2016, the courts of Kansas have had little time to interpret the statute. On its face, the Kansas anti-SLAPP act provides protections for an individual's constitutional rights to free speech, association, and petition. K.S.A. § 60-5320(b). However, the Kansas anti-SLAPP act only protects speech concerning a public issue or matter of public interest. K.S.A. § 60-5320(c)(4). Public issues or issues of public interest include matters concerning health, safety, the environment, the economy, the government and its officials, and goods or services. K.S.A. § 60-5320(c)(7).

How the Kansas Public Speech Protection Act works

After a SLAPP lawsuit is filed against a critic, whistleblower, or activist, that person may ask the court to dismiss the lawsuit because it implicates that person's protected rights. If successful, the court will strike the SLAPP claim, unless the responding party provides substantial proof that it is likely to win the lawsuit. K.S.A. § 60-5320(d). The court will postpone all other legal proceedings in the case until it determines whether the SLAPP claim is valid. K.S.A. § 60-5320(e)(2). Effectively, the Act puts an initial burden on the defendant to demonstrate that the claim is not frivolous. 

The KPSPA also authorizes the parties to immediately appeal a court's ruling on a SLAPP claim. Even if the case involves other issues, any further proceedings are delayed until the Kansas Court of Appeals reviews the ruling. K.S.A. § 60-5320(f).

What happens in Kansas if a court strikes a SLAPP claim?

Under Kansas law, a person who successfully strikes a SLAPP claim is allowed to recover their attorney fees and court costs from the opposing party. The court may also punish the opposing lawyers and their client by imposing sanctions to deter them and others like them from using the courts to stifle free speech. K.S.A. 60-5320.

However, litigants should not accuse the opposing party of bringing a SLAPP claim without good cause. If one party asks the court to strike a claim for a frivolous reason, like delaying court proceedings, the court may require that party to pay the other party's attorneys' fees and costs.

Uncertainty in the courts

It is unclear how the Kansas courts will interpret the KPSPA. Only one appellate decision has had the opportunity to address it since its adoption. In T&T Fin. of Kan. City, LLC v. Taylor, 2017 Kan. App. Unpub. LEXIS 1128 (Ct. App. Dec. 22, 2017), a businessman brought a defamation action against his ex-girlfriend who he claimed defamed him after their relationship ended. The ex-girlfriend attempted to invoke the protections of the anti-SLAPP act and argued that the businessman's defamation suit implicated her right to free speech.

The district court ultimately decided that the ex-girlfriend could not use the anti-SLAPP act as a shield unless she first admitted to making the statements. On appeal, the Kansas Court of Appeals disagreed with the district court, holding that a person need not admit to making the alleged statements before invoking the protections of the anti-SLAPP act. The Kansas Court of Appeals then remanded the case to the district court for further analysis. Interestingly, the district court opined that the anti-SLAPP act may be unconstitutionally overbroad, but never reached a decision in that regard.

While the Kansas Court of Appeals has addressed the limited issue of whether a person is required to admit the alleged statements before invoking the KPSPA, many other issues are unresolved. For instance, it is uncertain how the United States District Court for the District of Kansas will treat the Kansas anti-SLAPP act. Though some federal courts have enforced anti-SLAPP acts, others have declined to apply them after determining that the federal courts are not bound by state anti-SLAPP laws. Only time will tell if the federal court in Kansas will recognize the KPSPA.

What does the Kansas Public Speech Protection Act mean for employers?

The adoption of the KPSPA will change little for employers who can prove their legitimate legal claims. However, caution should be taken if a legal claim implicates the defendant's constitutional right to free speech. Employers who are too zealous in prosecuting their claims may find themselves liable for costly attorneys' fees or worse.

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