by Paul Alan Levy
Although Maryland was one of the first states to adopt an anti-SLAPP law, its weaknesses have become apparent over the years as other states have adopted stronger protections against suits brought to suppress free speech. Two of the most important obstacles to effectiveness of the statutes are found in the statute’s requirement that, before the law may be used as the basis for a dismissal, the trial court find both bad faith and an intent to inhibit speech on the part of the plaintiff. But a judge has now found a plaintiff’s action attacking free speech on a matter of public interest to be so far over the top that, in addition to finding the action to be meritless as a matter of law, it was possible to make both findings and hence dismiss the action.
The suit had been brought by a Baltimore developer unhappy that homeowners in both an apartment building and a set of houses within the Clipper Mill community complex had appeared before the city planning commission in opposition to plans by the developer to add a new set of mixed use buildings to the community. The developer contended that language in the community declaration demanding a certain level of voting support within the governing body of the community before the community as an entity could take a position on development issues also operated as a contractual waiver of the right of individual homeowners to advocate their personal views about the way in which their community should, or should not, be further developed. Applying the rule that waivers of free speech rights must be clear and knowing, the trial court had no difficulty finding that the contract did not include any clear waiver of the speech rights of individuals; it held as well that a contractual provision barring homeowners from appearing before a city commission would be void as against public policy.
But that was not enough to warrant dismissal under the anti-SLAPP law; rather, bad faith had to be found, and the court found such bad faith based on a combination of several factors that suggested a purpose of intimidation: the complaint was brought only days after the planning commission handed the developer an adverse decision; the developer not only sought punitive damages without any plausible allegation of malice, but put the exceptionally large figure of $25 million into the complaint (which plaintiff’s counsel could not justify under questioning); the complaint was accompanied by a punitive demand for preservation of documents, as well as coercive discovery demands for all of the defendant’s banking records for the past five years; the the complaint was larded with such vague but unsupported allegations as that the defendants had "created fictitious and subversive associations" and publish "false and misleading" information.
It will be only the most unusual SLAPP-happy plaintiff whose counsel are going to be so incautious as to emulate the features that made this lawsuit subject to dismissal under Maryland’s anti-SLAPP law as adopted. Consequently, we can anticipate a renewed effort, building on efforts in previous legislative sessions, to pass strong anti-SLAPP amendments in the coming Maryland legislative session. For example, the defendants in the Clipper Mill case were able to afford counsel only because of the happenstance that some of them carried libel coverage in their homeowner's insurance; current anti-SLAPP law in Maryland gives no opportunity to recover attorney fees when a SLAPP suit is dismissed.