Idaho bill could offer protections for retaliatory lawsuits. Here’s what it would do

Criticism against a powerful figure could seem harmless — a mean tweet, a public tiff, a disapproving statement.

Then, you’re hit with a lawsuit.

Notice can come in threatening letters from lawyers or in court summons. But the message is often similar: Your actions will cost you, in legal fees and in time. For wealthy actors, lawsuits can be a way to deter dissent, especially when filed against people with fewer resources. These lawsuits are known as “Strategic Lawsuits Against Public Participation,” or SLAPPs, and filed to intimidate people with expensive legal proceedings.

Idaho legislators are now proposing a bill that would protect residents against those lawsuits.

Such laws have been passed in other states with the aim of thwarting frivolous lawsuits meant to silence critics. More than half of U.S. states have some kind of anti-SLAPP laws, according to the Reporters Committee for Freedom of the Press. Protections in some states only prevent retaliation for criticizing the government, while other states, like California, have laws that “broadly protect speech made in connection with a public issue,” according to the committee.

In August, lawmakers in Wisconsin proposed protections from SLAPP lawsuits after a state legislator sued a local nonprofit news outlet for reporting on previous comments he made during a public meeting. The lawsuit — which a judge dismissed but is now on appeal — has cost the publication nearly $150,000 in legal fees, which left the editor unsure how she would manage to stay open and pay her staff of four reporters. That proposal has not become law.

Most anti-SLAPP laws allow defendants in lawsuits to quickly move to dismiss them. The Idaho version would require a defendant ask that a case be dismissed within 60 days of the complaint’s filing. Courts would then be required to hold a hearing within the next two months and decide whether the lawsuit is frivolous or an attempt to limit a person’s commentary on a matter of “public concern” two months after that. That timeline would wrap up SLAPP lawsuits faster than the years it often takes to settle litigation.

Sen. Brian Lenney, R-Nampa, in a news release said he wants to “safeguard free speech in Idaho by providing robust protections against legal bullying through frivolous lawsuits.” Rep. Heather Scott, R-Blanchard, is also a co-sponsor.

“The proposed bill draws from the successful frameworks of laws in states like Texas and California,” Lenney said in the release. “It aims to shield Idahoans from the misuse of litigation by powerful interests seeking to suppress public dialogue and dissent through intimidation.”

Lenney, a member of the far-right Idaho Freedom Caucus, told the Statesman Senate Bill 1325 is based on a Public Expression Protection Act proposed by the Uniform Law Commission, a nonprofit that proposes standard legislative language for state legislatures to adopt. For its anti-SLAPP bill, the commission lists endorsements from the national ACLU, the Institute for Free Speech, the Institute for Justice, and other groups.

The president of the Institute for Free Speech, a conservative nonprofit in Washington, also wrote an opinion article in the Statesman supporting anti-SLAPP legislation and pointing out that Idaho is one of only a few states that doesn’t already have those protections.

“Enough is enough,” Lenney said in his news release. “The era where deep pockets dictate our freedoms is over. This anti-SLAPP legislation is our stand for the voiceless, ensuring that the right to speak out in Idaho is not a privilege of the wealthy but a right for all.”

‘Characteristics of a SLAPP’ lawsuit

Multiple lawsuits in Idaho have been prompted by critical comments.

In one case in 2021, former Rep. Chad Christensen, R-Iona, sued Greg Graf, a political consultant, on grounds of defamation. Graf later filed a counterclaim. Both claims were eventually dismissed.

That same month, Idaho figures on the right, including Dustin Hurst, the former vice president of the Idaho Freedom Foundation who was also a party to the lawsuit, posted on social media in support of laws that would squelch efforts to silence critics. Hurst posted on X, formerly Twitter, that “government shouldn’t be used to silence those who say things we disagree with.” He later commented on a post from Lenney, noting that he supported such legislation.

In another case, in 2022, Clearwater Analytics co-founder Mike Boren sued public officials in the Stanley area who had objected to the investment manager’s proposal to designate a private airstrip in the Sawtooth Valley. Boren accused several public officials of defamation after they made critical statements about a planned airstrip on his property.

After the lawsuit was dismissed by a Custer County judge, Boren and his attorneys filed an amended complaint, which was also rejected by the court, and have since appealed the decision to the Idaho Supreme Court. Custer County Judge Stevan H. Thompson wrote that the lawsuit had “many of the key characteristics of a SLAPP” lawsuit, according to previous Statesman reporting.

The Foundation for Individual Rights and Expression represents one of the defendants in Boren’s lawsuit. J.T. Morris, a senior attorney at the foundation, said the organization has endorsed the kind of anti-SLAPP measures proposed by the Uniform Law Commission.

“They’re a vital tool to provide both substantive laws and procedures that allow Americans who are facing lawsuits targeting their expressive freedoms to kick those lawsuits out of court faster,” Morris told the Statesman by phone.

Morris told the Statesman that Lenney’s bill has “all the hallmarks of a good SLAPP bill,” including mechanisms for defendants to recover their attorneys’ fees and procedures to allow them to quickly request courts to dismiss such cases.

An attorney for Boren, Tom Banducci, told the Statesman his client supports First Amendment rights and would support anti-SLAPP legislation, but that such a law would still not protect people who make defamatory statements. He said he believes Boren’s lawsuit was “not a SLAPP suit.”

Want the latest news on the Idaho Legislature? Sign up for Capitol Letters, a newsletter we send for every day of the legislative session. We'll keep you up to date on bills in the process of becoming law.