Anti-SLAPP Defendant’s Burden Of Proof: Prong Two

A common cause of failure on an anti-SLAPP motion is a misunderstanding of the evidentiary burdens each side must satisfy. I suppose its understandable given skeletal analysis found in most of the typical practice guides. And with over 400 published decisions in this area, I suppose it’s inevitable that busy practitioners–who are not experts–will overlook some of the SLAPP statute’s subtleties. This is why it’s important to hire a lawyer that concentrates his practice in this area of law. This is not an area one dabbles in.

In addition to the defendant’s initial burden under prong one to show that the acts underlying the causes of action arise from petitioning or free speech activity, defendant has a burden on the second prong, depending on the appellate district. In many districts, defendant has the burden to substantiate its affirmative defenses with competent evidence. Other courts, however, have stated that it’s plaintiff’s burden to overcome all affirmative defenses by showing that they are not applicable to the case as a matter of law or by a prima facie showing of facts, "which if accepted by the trier of fact, would negate such defenses."

Whatever the prevailing view is, the practitioner must be ready to defend his position. Not knowing these applicable standards is, in my opinion, an unforgivable sin.




  1. olivia says

    if the first prong has not been met, it is not a protected activity because the plaintiff for defamation is a private person. Is the second prong test still relevant? The plaintiff cannot collect evidences because the defendant file and anti slapp motion. The plaintiff sent her own copies of evidences, payslip, emails, etc. and was ordered to pay fees to defendant for part anti slapp judgement. IS this even legal, the first anti slapp test did not pass, why even visit the second prong?

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