Florida’s Fourth District Court of Appeal recently discussed Florida’s Anti-SLAPP statute’s application to electioneering communications, specifically the negative mailers that were widely deployed during the 2018 elections. In that case, a defeated incumbent on the West Palm Beach City Council was accused by her detractors of claiming various tax breaks and grants to which she was not entitled under the law. After she was defeated, she sued the purveyors of the allegedly defamatory materials for defamation.
The trial court denied the Anti-SLAPP motion filed by the defendants. Florida’s Anti-SLAPP statute protects against meritless lawsuits filed for the primary purpose of suppressing First Amendment rights. However, the Anti-SLAPP statute does not cover “electioneering communications” by its terms. The parties argued over whether the Anti-SLAPP statute should be construed narrowly or broadly, given the competing policy implications and rules of statutory construction, but ultimately the appellate decision did not disturb the trial court’s ruling on this issue.
The Fourth DCA ultimately held that Florida appellate jurisdiction does not extend to denial of Anti-SLAPP motions. Because denial of an Anti-SLAPP motion does not end the case, it is subject to the final order doctrine, which states that a party may ordinarily appeal only at the conclusion of the litigation. Although the Florida Supreme Court has promulgated various exceptions to the final order doctrine, it has not provided any exception for denial of Anti-SLAPP immunity.
Importantly, the Fourth DCA certified conflict with another decision by the Southwest Florida-based Second DCA, meaning that the Florida Supreme Court could review the case. If it does so, the Florida Supreme Court may consider expanding its exceptions to the final order doctrine, as suggested by the Fourth DCA. However, the final resolution of this matter will likely depend on the balancing of First Amendment issues on the one hand with the problems of expanding Anti-SLAPP protection to widely detested negative mailers.
The case is WPB Residents for Integrity in Government v. Materio, 4D19-967, 44 Fla. L. Weekly D2640a (4th DCA October 30, 2019).