Note: This page covers information specific to Indiana. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Indiana's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to dismiss a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-1(a). If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
Activities Covered By The Indiana Anti-SLAPP Statute
To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an act or omission "in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-5 (1). You also need to establish that your action was "taken in good faith and with a reasonable basis in law and fact." Ind. Code § 34-7-7-5 (2).
Indiana courts have interpreted the "right of petition or free speech . . . in connection with a public issue or an issue of public interest" to include media coverage of newsworthy events. "Newsworthiness" is a flexible concept, and it is sometimes difficult to predict what topics a court will deem to fit the definition. But, in all likelihood, news reports and even informal posts about current events and significant economic, political, and social issues would fit the bill.
In contrast, statements and postings of a more personal character are less likely to be "in connection with a public issue or an issue of public interest." For example, in Hamilton v. Prewett, 860 N.E.2d 1234, 1247 (Ind. App. 2007), an Indiana appeals court held that the anti-SLAPP law did not protect a website operator who parodied a local business man because the website did not address a "public issue."
To prevail on a motion to dismiss under the anti-SLAPP statute, you will also need to show that your action was "lawful." See Ind. Code § 34-7-7-9 (d). Therefore, if your speech constitutes defamation, extortion, or some other unlawful act, the anti-SLAPP law does not protect you.
How To Use The Indiana Anti-SLAPP Statute
The Indiana anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition or free speech (as defined above). The court must hear and rule on the motion within 180 days of your filing it.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
When filing a motion to dismiss, you must specify the public issue that prompted your speech or petition activity. See Ind. Code § 34-7-7-9(b). You also need to provide evidence establishing that your act was taken in good faith and with a reasonable basis in law and fact. After the motion is filed, the court will establish a schedule for taking discovery relevant to the motion -- that is, exchanging documents, taking deposition, and answering written questions on the issue of whether your action was lawfully taken in furtherance of your right of petition or speech.
What Happens If You Win A Motion To Dismiss
If you prevail on a motion to strike or dismiss under the Indiana anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Ind. Code § 34-7-7-7.
If you succeed in fending off a SLAPP-type lawsuit in Indiana, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Indiana does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
