In 2019, U.S. House member Devin Nunes initiated a $250 million legal action against a parody Twitter account that posed as his bovine companion. The case, which drew significant mockery from media outlets, served as a prime illustration of a Strategic Lawsuit Against Public Participation, commonly abbreviated as SLAPP. Such legal strategies are rarely intended to prevail on the actual merits of the case; instead, they aim to silence, intimidate, and financially exhaust critics by imposing the heavy burden of litigation costs.
Nunes strategically selected Virginia as the venue for his suit, intentionally avoiding his home state of California. California is renowned for possessing some of the nation’s most stringent anti-SLAPP regulations. This choice represented a clear instance of "libel tourism," a practice where plaintiffs seek out jurisdictions with weaker legal defenses to penalize opponents.
To curb these types of legal abuses, numerous states have implemented comprehensive anti-SLAPP laws. These statutes empower defendants to rapidly dismiss baseless, speech-suppressing lawsuits and potentially recover their legal costs. Washington State is among the jurisdictions that adopted such protections.
Washington enacted the Uniform Public Expression Protection Act, found in Chapter 4.105 of the Revised Code of Washington, with the goal of offering residents a high-standard First Amendment defense. While the legislation broadly shields Washingtonians from retaliatory tort or defamation claims, it contains a significant, perhaps accidental, gap: civil protection orders.
The state’s path to a workable anti-SLAPP framework has been marked by legislative hurdles. A previous Washington anti-SLAPP statute was invalidated by the state Supreme Court in 2015. The high court determined the older law was unconstitutional because it compelled judges to evaluate evidence and settle factual conflicts prior to trial, thereby infringing upon the right to a jury.
In response, the legislature approved UPEPA in 2021. Developed by the Uniform Law Commission to harmonize protections across the country, the new law aligned the standard for dismissing anti-SLAPP claims with the summary judgment standard, thereby meeting constitutional mandates.
On the surface, Washington finally possessed a strong, enforceable tool to safeguard journalists, whistleblowers, and ordinary citizens from retaliatory litigation.
Nevertheless, during the drafting process, lawmakers included specific exclusions. Section 4.105.010(3)(a)(ix) of the Revised Code of Washington explicitly states that the anti-SLAPP statute does not cover certain proceedings, specifically including actions for civil protection orders.
Due to this statutory exclusion, individuals contending with a baseless or retaliatory civil protection order petition cannot utilize the anti-SLAPP defense. The legal shield is effectively removed upon entering the courtroom.
While civil protection orders are undeniably vital, they establish rapid and often life-saving boundaries for survivors of sexual assault, stalking, and domestic violence.
However, because civil anti-harassment orders feature a lower threshold for initiation and proceed on an accelerated schedule, the system can be easily exploited when free speech is at stake.
In the absence of an anti-SLAPP mechanism for protection orders, strategic actors have recognized that they do not need to file massive defamation suits like the one brought by Nunes to quiet a critic.
A frustrated business owner, a questionable local official, or an overbearing neighbor can simply submit a meritless petition for a civil anti-harassment order against a journalist, activist, or outspoken community member.
The Bainbridge Island Meme Ban
One does not need to look far to find an example of this abuse affecting an average Washington resident. Consider the experience of a retired Air Force major and Bainbridge Island resident who found himself on the receiving end of a speech-chilling protection order.
A dispute rooted in political disagreement escalated into a legal battle between a local civil liberties advocate and the mayor of Bainbridge Island. The advocate, who had long criticized the mayor’s public stance on national defense legislation, argued that the elected official’s support for a memorial to Japanese American internment was inconsistent with his silence on modern statutes permitting the indefinite detention of U.S. citizens.
The advocate targeted the mayor through various online channels, including comments on the mayor’s social media profiles, the creation of a dedicated group for satirical content, and public questioning of the mayor’s suitability for leadership. In response to the persistent digital criticism, the mayor sought a civil stalking protection order rather than engaging in a direct debate or ignoring the posts.
In July 2017, a judge in the Bainbridge Island Municipal Court approved the request. The ruling imposed a broad restriction on speech, prohibiting the advocate from creating any webpages, images, or memes that referenced the mayor by name or included his photograph. This order was issued despite the judge’s explicit finding that the advocate had never threatened physical violence.
The controversy prompted a review by the Kitsap County Superior Court, which vacated the initial order in early 2018. The higher court determined that the advocate’s online expressions constituted protected political speech under the First Amendment. By that time, however, the advocate had already spent nearly a year navigating a costly and stressful legal process to reclaim basic constitutional rights. The appeal was handled pro bono by a prominent First Amendment scholar.
The prolonged legal conflict had a significant chilling effect on the advocate’s speech, ultimately leading to a separate federal lawsuit. That litigation successfully challenged specific portions of Washington’s cyberstalking law as unconstitutional. The episode highlights a procedural gap: because petitions for protection orders are currently exempt from Washington’s Uniform Public Events Act, individuals targeted by such orders must undergo full court hearings to defend their free speech rights.
In contrast, California’s anti-SLAPP statute, found in Code of Civil Procedure § 425.16, does not provide a blanket exemption for restraining orders. California courts frequently allow defendants to file anti-SLAPP motions when a civil harassment restraining order petition stems from constitutionally protected activity. These courts acknowledge that judicial injunctions can impair free speech as severely as monetary damages lawsuits. For example, a defendant in California can move to dismiss a restraining order filed to stop sidewalk protests or punish negative consumer reviews. If the judge finds the petition targets protected speech and lacks merit, the case is dismissed quickly, and the filer must cover the defendant’s legal costs, creating a financial deterrent against using protective orders to silence critics.
Washington’s legislature could address this issue by modifying state law. A simple legislative fix would involve removing the language in RCW 4.105.010(3)(a)(ix) that currently creates a blanket exemption for anti-harassment and protection orders from anti-SLAPP review.
Removing this exemption would in no way weaken the protections available to actual victims of those who face abuse. Individuals in genuine danger would have no trouble satisfying the evidentiary requirements needed to obtain a court order for protection or to overcome an anti-SLAPP motion, as the First Amendment does not shield actual violence or credible threats.
However, attempts to misuse Chapter 7.105 RCW to silence political rivals, intimidate neighbors, or muzzle the press would now be subject to the swift dismissal and potential financial penalties mandated by Washington’s anti-SLAPP statute.