In a recent interview with The Recorder, Venable partners Lee Brenner and David Fink, based in Los Angeles, weighed in on two major developments shaping today’s defamation litigation landscape: the sharp increase in defamation lawsuits and the troubling erosion of California’s anti-SLAPP protections.
According to Brenner, 2025 has become what he calls “The Year of Defamation,” driven in part by the cultural impact of high-profile trials like Johnny Depp v. Amber Heard. “The cool kids are suing for defamation,” he remarked, noting a clear uptick in both serious and meritless cases. Fink added that the role of social media, and its ability to spread information widely and instantly, with little oversight, have only fueled the trend.
Recently, California courts have been taking a new, and potentially risky, approach. Judges are more often reducing or denying mandatory attorneys’ fees under the anti-SLAPP law when plaintiffs claim indigency. The anti-SLAPP statute (Strategic Lawsuit Against Public Participation) is designed to protect individuals from frivolous lawsuits that target free speech by requiring losing plaintiffs to pay the defendant’s legal fees. This fee-shifting provision is not just procedural; it’s central to the statute’s deterrent effect.
Brenner expressed concern that indigency claims are increasingly used as both a shield and a sword. In some cases, he noted, plaintiffs who bring meritless claims are excused from paying substantial fee awards, only to refile more frivolous claims. “If there’s no financial consequence, there’s no deterrent,” he warned. “Litigation becomes a tool to silence rather than to seek justice.”
Fink pointed out that many judges may lack firsthand experience with anti-SLAPP motions and may not fully appreciate how complex and resource-intensive these filings are. “There’s no such thing as a cookie-cutter anti-SLAPP motion,” he said, emphasizing the significant legal work involved. When courts reduce fee awards, it not only weakens the law’s deterrent value but may also unjustly penalize the lawyers and clients who are defending themselves against meritless attacks.
The article also addressed practical strategies. Fink cautioned litigants not to rely on fee recovery when deciding to file an anti-SLAPP motion, as collection is often uncertain. Instead, he advises focusing on the motion’s ability to quickly dispose of baseless claims. Brenner added that no California appellate court has endorsed the use of indigency as a reason to reduce fee awards, and legislative clarification may be needed to prevent further erosion of the statute.
As both attorneys noted, the weakening of anti-SLAPP protections poses broader risks, particularly for individuals who lack fame or financial resources. These include victims of defamation tied to sensitive matters such as reporting sexual assault, where anti-SLAPP protections are crucial to defending constitutional rights without incurring crushing legal costs.
Their remarks highlight an important point that while defamation law continues to evolve, the fundamental protections for free speech must remain firm. With defamation claims being used both to seek legitimate relief and to pressure or silence others, maintaining the integrity of anti-SLAPP safeguards is essential.