Should the Legislature Rethink Washington’s Flawed Anti-SLAPP Carveouts?

In 2019, U.S. Representative Devin Nunes filed a $250 million defamation lawsuit against a satirical Twitter account pretending to be his cow. The lawsuit, widely ridiculed in the press, was a textbook example of a Strategic Lawsuit Against Public Participation, or a “SLAPP.”

SLAPPs are not designed to win on the legal merits, but are designed to intimidate, censor, and financially ruin critics through the sheer cost of litigation.

Nunes notably filed his lawsuit in Virginia, deliberately bypassing his home state of California, which boasts some of the strongest anti-SLAPP laws in the nation. It was a clear case of “libel tourism”—shopping for a jurisdiction with weak legal shields to punish a detractor.

To prevent such abuses, states across the country have to enact robust anti-SLAPP statutes that allow defendants to swiftly dismiss meritless, speech-chilling lawsuits and recover their attorney’s fees.

Washington State is one of those states.

By adopting the Uniform Public Expression Protection Act, codified in Chapter 4.105 RCW, Washington sought to provide its citizens with a gold-standard First Amendment shield. But while the law broadly protects Washingtonians from retaliatory defamation or tort claims, it contains a glaring, unintended loophole: civil protection orders.

Washington’s Rocky Legislative History

Washington’s journey to a functional anti-SLAPP law has been turbulent. The state’s previous anti-SLAPP statute was struck down by the Washington Supreme Court in 2015. The court ruled that the old law was unconstitutional because it required judges to weigh evidence and resolve factual disputes before a trial, violating the right to a jury.

To fix this, the legislature passed UPEPA in 2021. Drafted by the Uniform Law Commission to standardize protections nationwide, UPEPA aligned the anti-SLAPP dismissal standard with the standard for summary judgment, satisfying constitutional requirements.

On paper, Washington finally had a robust, enforceable mechanism to protect journalists, whistleblowers, and everyday citizens from retaliatory litigation.

However, in drafting the law, lawmakers carved out specific exemptions. Under RCW 4.105.010(3)(a)(ix), the legislature explicitly stated that the anti-SLAPP statute does not apply to certain actions, including civil protection order actions.

Because of this statutory exemption, individuals facing a retaliatory or baseless civil protection order petition cannot invoke the anti-SLAPP statute. The shield is completely dropped at the courthouse door.

The Weaponization of Protection Orders

Civil protection orders are undeniably essential. They provide rapid, life-saving boundaries for survivors of domestic violence, stalking, and sexual assault.

However, because civil anti-harassment orders have a relatively low barrier to entry and operate on expedited timelines, the system can be easily weaponized when free speech is involved.

Without an anti-SLAPP mechanism in place for protection orders, bad actors have realized they don’t need to file a multi-million-dollar defamation suit like Devin Nunes did to silence a critic.

A disgruntled business owner, a corrupt local politician, or an aggressive neighbor can simply file a meritless petition for a civil anti-harassment order against an activist, journalist, or vocal community member.

The Bainbridge Island Meme Ban

We do not have to look far for an example of this abuse against an average citizen in Washington State. Consider the ordeal of Rick Rynearson, a retired Air Force major and Bainbridge Island resident who found himself on the wrong end of a speech-chilling protection order.

The conflict began over a political disagreement. Rynearson had engaged in persistent online criticism of Clarence Moriwaki, a prominent local activist who founded the Bainbridge Island Japanese American Exclusion Memorial.

Moriwaki is currently the Mayor of Bainbridge Island.

Rynearson, a vocal civil liberties advocate, believed that anyone who condemned the WWII internment of Japanese Americans should also vocally oppose modern laws that allow for the indefinite detention of U.S. citizens, such as the National Defense Authorization Act.

Rynearson repeatedly criticized Moriwaki online for failing to speak out against the NDAA, posting critical comments on Moriwaki’s public Facebook page, creating a separate Facebook group to post satirical memes, and questioning his fitness as a community leader.

Rather than debate his critic or simply ignore him, Moriwaki filed for a civil stalking protection order.

In July 2017, a Bainbridge Island Municipal Court judge granted the order. The judge issued a sweeping, unconstitutional prior restraint on speech, explicitly banning Rynearson from creating any webpages, images, or “memes” that included Moriwaki’s name or photograph.

The judge issued this gag order despite expressly finding that Rynearson had made absolutely zero threats of physical violence.

While the reviewing Kitsap County Superior Court ultimately vacated the unconstitutional order in early 2018—ruling that Rynearson’s online posts and memes were protected political speech under the First Amendment—the damage was already done.

Rynearson was forced to endure nearly a year of stressful, costly litigation just to win back his basic constitutional right to criticize a public figure. He was ultimately represented pro bono on appeal by renowned First Amendment scholar Eugene Volokh.

The chilling effect of the ordeal was so severe that it eventually led Rynearson to file a separate, successful federal lawsuit that struck down portions of Washington’s cyberstalking law as unconstitutional.

Because these types of petitions are exempt from UPEPA, targeted individuals like Rynearson are forced to endure the stress, time, and financial burden of a full court hearing to defend their First Amendment rights.

Looking Outward

In California, under Code of Civil Procedure § 425.16, the state’s anti-SLAPP statute does not contain a blanket exemption for all restraining orders.

In fact, California courts frequently and successfully apply anti-SLAPP motions to petitions for Civil Harassment Restraining Orders when those petitions arise from constitutionally protected activity.

California courts recognize that a court-ordered injunction can be just as devastating to free speech as a lawsuit for monetary damages.

For instance, if a California resident files a restraining order to stop an activist from protesting on a public sidewalk, or to punish a consumer for publishing a negative review, the defendant can file an anti-SLAPP motion.

If the judge agrees that the petition targets protected speech and lacks a probability of success, the petition is swiftly dismissed, and the filer is forced to pay the defendant’s legal fees. This creates a powerful financial deterrent against abusing the protective order system to settle public relations scores or silence government critics.

A Simple Legislative Fix

Washington’s legislature has the power to close this backdoor. The legislature could simply draft a bill to strike the language in RCW 4.105.010(3)(a)(ix) that creates a blanket exemption for anti-harassment and protection orders.

By removing this carveout, lawmakers would not diminish the vital protections afforded to genuine victims of abuse. Victims will easily meet the burden of proof required to secure a protection order and defeat an anti-SLAPP motion—because true threats and violence are not protected by the First Amendment.

However, those who attempt to weaponize Chapter 7.105 RCW to gag their political opponents, intimidate their neighbors, or silence the press would finally face the expedited dismissal and financial consequences of Washington’s anti-SLAPP law.