Idaho’s New Anti-SLAPP Law: A Cautionary Roadmap for Practitioners Navigating Uncharted Legal Territory

By Angelo L. Rosa | Managing Partner at ROSA PLLC & President at ALR Publications Ltd.

This article is an overview of the anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which has been newly codified as part of Idaho law in the “Uniform Public Expression Protection Act” codified at Idaho Code § 6-3901, et seq. and taking effect  January 1, 2026.

Having practiced primarily in California and Idaho (one with a highly advanced and inclusive body of statutory and case law on this matter and the other just beginning its journey), the author will describe (at a high level) the purpose of an anti-SLAPP statutory scheme, what it is meant to protect, the abuses that have become common across jurisdictions with such schemes, and some specific warnings given Idaho’s current state of legal evolution.

A Summarized Education in Anti-SLAPP Law

An anti-SLAPP statute is meant to address the rise of meritless lawsuits whose intent is to chill the valid exercise of constitutional rights, particularly free speech and petitioning activity. The purpose of the statute is to resolve such lawsuits quickly and inexpensively and, in providing such a methodology, prevent abuse of the judicial process. Idaho’s Legislature has adopted the relatively recent structure known as the “Uniform Public Expression Protection Act,” the same adopted by the State of Washington in 2021.

A legally correct anti-SLAPP statute protects acts in furtherance of a person’s right of petition or free speech under the United States or (for this purpose) the Idaho Constitution in connection with a public issue. The language of Idaho’s anti-SLAPP statute provides language that intends broad application. See Idaho Code § 6-3911. Examples of protected actions would be statements made in official proceedings, statements made in connection with issues under review by governmental bodies, statements made in public forums on matters of public interest, and other conduct related to constitutional rights of petition or free speech.

The proper use of an anti-SLAPP motion involves a defendant filing a special motion to strike a claim that arises from a covered/protected activity. Upon filing the motion, all discovery proceedings are typically stayed until the court rules on the motion, although some discovery might be conducted by permission of a court.

In Idaho, the new statute provides for a motion to dismiss a case, in whole or in part, according to procedures set forth in Idaho Code § 6-3907 and (by its language) implicating the use of procedural vehicles defined in Idaho Rule of Civil Procedure 12. A court should then evaluate an anti-SLAPP motion to strike in two steps: first, determining whether the claim arises from protected activity, and second, assessing whether the plaintiff has demonstrated a probability of prevailing on the claim.

This two-step analysis ensures that only claims with minimal merit proceed, balancing the protection of constitutional rights with the need to address legitimate grievances.

Widely Condemned Abuses of Anti-SLAPP Laws

Another concern is that the nobility of purpose that anti-SLAPP statutes represent is not to be abused or misapplied. Anticipating potential abuses from studying the bodies of law in other jurisdictions will be critical for attorneys and courts alike. Common abuses of anti-SLAPP laws can include the following:

• Filing anti-SLAPP motions in cases where the claims do not arise from protected activity. Most states with existing statutes and developed appellate guidance have warned (and ruled) against the use of anti-SLAPP motions to dispose of actions against attorneys for "garden variety" malpractice, breach of duty of loyalty, or breach of trust, as well as personal injury and insurance coverage claims. Anti-SLAPP motions are often filed despite the lack of a connection to protected speech or petitioning activity, resulting in unnecessary delays and costs for plaintiffs. Consequently, as unpopular as legal malpractice cases are in Idaho, allowing anti-SLAPP motions as a quick way of disposing of such cases will be a misuse of the statute and certainly contrary to its intent.

• Filing anti-SLAPP motions to delay proceedings is another broadly recognized abuse of the statutory scheme across the jurisdictions with established statutory schemes. Similarly, a regrettably common tactic includes filing frivolous interlocutory appeals of denied anti-SLAPP motions, automatically staying the underlying litigation, causing prejudicial delays and increasing litigation costs for plaintiffs. Idaho Code § 6-3904 (addressing stays pending resolution of anti-SLAPP motions) provides a mechanism for addressing stays, but how they relate to the case-by-case evaluation of delay risk and strategic “misuses” of an anti-SLAPP motion will require the informed vigilance of both the non-filing party’s counsel and the reviewing court, just as in other jurisdictions. However, as also applies to the misuse of anti-SLAPP motions to dispose of unpopular lawsuits, this tactic has been commonly held as anathema to the statute's intent to provide a quick resolution.

• Weaponizing anti-SLAPP motions to intimidate or otherwise “litigate” a plaintiff into submission. This occurs most frequently where larger commercial defendants invoke the statute inappropriately by claiming (without merit) that their advertising or other commercial speech impacted the public interest even when such claims were meritless. This has prompted some states to extend the legislative scope of their anti-SLAPP statutes to provide clarifications regarding freedom of “business speech.”

General Warnings About Anti-SLAPP Proceedings

Working with, and having observed the evolution of, anti-SLAPP statutes in multiple jurisdictions across three decades, it is evident that jurisdictions implementing anti-SLAPP statutes for the first time can (and indeed must) learn from the journeys other states have made as litigation and legislation interact with a far more regular cadence than usual.

As a corollary to looking at the laws of other states, one of many universal acknowledgments emerges: the purpose of litigating anti-SLAPP laws is not to test how far they can be pushed or contorted. These laws are not meant to be wielded casually. They are, however, meant to curb the misuse of the litigation process.

Reassessing Anti-SLAPP Laws: Lessons from California and Legal Implications for Idaho's Statute

States such as California provide a useful series of object lessons in how an anti-SLAPP statutory scheme can (and often should) be regularly reassessed to reflect the issues and demands on the judiciary as well as the level of abuse (by both litigants and the courts) of these provisions. Idaho’s anti-SLAPP statute closes (at Idaho Code § 6-3915) with a severability clause that will most assuredly be invoked as the balance of the statute is tested over the course of litigation matters.

Specific Warnings for Idaho: Wield the “Shiny New Tool” Wisely

As stated earlier, the purpose of Idaho’s anti-SLAPP law is to provide a means of protecting constitutional rights of free speech and petition. The statutory scheme is not meant to be the new standard response to a lawsuit perceived as brought in bad faith or unpopular.

Particularly in the initial phases of invocation and adjudication, the degree to which the Idaho judiciary comports with legislative intent (accepted by all jurisdictions with anti-SLAPP statutes) will largely depend on the proper vetting of suits by opposing counsel, and how those challenges are presented to courts for determination. For some time to come, every case involving the anti-SLAPP statute will be (at least regarding the statute) a case of first impression. This imposes a higher than usual burden on Idaho attorneys. It also informs the admonition below to become as educated as possible. The task will then fall to the reviewing court to properly rule on such motions as they are argued and submitted for decision.

While the disposition of certain matters will be well-suited to the purpose of Idaho’s new anti-SLAPP statute, well-reasoned and articulately expressed decisions will be critical from the moment the first anti-SLAPP motion is submitted for decision to an Idaho court. Consequently, the following points of guidance are offered:

• Applying the interpretations of anti-SLAPP provisions will require careful research and effort. With no body of appellate guidance on the subject in Idaho, it will be necessary (and even essential) to study how other jurisdictions have treated issues like those in contention involving Idaho’s anti-SLAPP provisions.

• Given that advocacy will inevitably produce conflicting treatment of various issues, the reasoning applied in sister jurisdictions with more developed anti-SLAPP laws will be the initial sources of precedent in support of either side of a particular issue. Familiarity with state laws will be an essential source of necessary context during the initial disputes brought under the anti-SLAPP statute.

• As conflicting interpretations of the Idaho statute percolate into Idaho’s appellate courts, it will be incumbent upon those courts to approach the issues with circumspection as their decisions begin to shape a body of Idaho caselaw. As new territory for this jurisdiction, there is an exciting element to the prospect of observing the development of this new body of guidance. Assuming Idaho’s appellate courts approach their review obligations with the proper balance of scholarship and practicality, it will be similarly incumbent upon appellate counsel to comprehensively brief the issues and provide guidance that accurately reflects the treatment of issues in other jurisdictions.

• Finally, a litigant who improperly (but successfully) utilizes an anti-SLAPP motion to defeat a lawsuit may need to be prepared to be “slapped back.” A SLAPP-back motion is essentially a species of claim for malicious prosecution and/or abuse of process that arises from the filing or maintenance of a prior lawsuit dismissed through a motion to strike or other mechanism for invoking anti-SLAPP protections. The purpose of a SLAPP-back motion is to address the broader damages suffered by SLAPP victims, such as financial distress or emotional harm, which are not covered by the attorney fees and costs awarded under most anti-SLAPP statutes. This aligns with the legislative intent to deter SLAPP litigation and restore public confidence in participatory democracy. The State of California has codified the SLAPP-back process with specific definitions and procedural requirements that differ from more “typical” malicious prosecution and abuse of process claims. At present, it remains to be seen whether the need for specific statutory attention will be necessary in Idaho. However, poorly contrived and executed anti-SLAPP motions will assuredly be ripe for redress through the customary claims that are currently recognized under Idaho state law.

How to Prepare for Idaho’s Anti-SLAPP Statute

No single approach is a universally correct approach when it comes to preparing for new laws to take effect, with perhaps the exception that every intelligent approach involves self-education and direct immersion into the laws and, where no caselaw exists, the laws of sister jurisdictions. A few key recommendations include the following:

• Familiarity with the Idaho anti-SLAPP statutory scheme, to include not only the final codification of the law but also the legislative history as a means of placing these new statutes into context and ensuring the legislative intent is accurately stated as issues are litigated.

• Reviewing well-developed bodies of anti-SLAPP laws as they exist in other jurisdictions. The most evolved sources are found in California.

• Reviewing the body of Ninth Circuit Court of Appeals decisions that speak to anti-SLAPP proceedings brought in federal court (i.e., Erie Doctrine applications) and the dictum/ commentary upon such proceedings for both context and depth of familiarity with these issues.

• Continuing legal education courses.

• Practice materials are available through legal research platforms.

With an anti-SLAPP statute passing into law, there will be a learning curve for both attorneys and judges. There will be abuse. Some will be corrected by Idaho’s judiciary, some will not.

However, this statutory enactment is an encouraging indicator that the laws of Idaho and the uses of its legal system to remedy wrongs are evolving in healthy directions. The legislature will need to be sensitive to the application of its laws by the judiciary, just as the Idaho practitioner must be sensitive to the workings of both in correctly utilizing and contributing to the growth of this new expansion of Idaho law.

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