To defeat an anti-SLAPP motion, your fastest win is convincing the court at step one that the defendant’s conduct isn’t protected activity under your state’s statute at all. If the court gets past that and reaches step two, you need to back every element of every claim with admissible evidence — declarations, documents, authenticated exhibits — filed on a short deadline and usually without the help of discovery. Knowing how to defeat an anti-SLAPP motion means knowing which of those two fights you’re really in, and preparing for both.
Know Your State’s Statute Before You Draft
Forty states and the District of Columbia have anti-SLAPP laws, and they are not uniform. Some protect only statements made in official government proceedings. Others cover any speech on a matter of public concern, wherever it happens. About fifteen states have adopted the Uniform Public Expression Protection Act, which applies a summary-judgment-like standard, stays discovery automatically, and makes attorney fee awards mandatory. Older, narrower statutes may protect a much smaller slice of activity.
Read your state’s statute closely before you draft a single sentence of opposition. Identify exactly what categories of activity it protects, what evidentiary standard it imposes on you, what exemptions it carves out, and what the penalties look like if you lose. A strategy built for a broad public-interest statute will fall apart under a narrow one that only reaches testimony at government hearings, and vice versa.
The Two-Step Test You’re Fighting
Most anti-SLAPP statutes use some version of a two-step burden-shifting test. The defendant goes first. They must show that your lawsuit arises from conduct the statute protects — typically speech or petitioning activity connected to a public issue or an official proceeding. If they can’t clear that threshold, the motion dies and your case moves forward.
If they do clear it, the burden shifts to you. You must demonstrate your claims have enough merit to survive. The precise standard varies by state. Some apply something close to a summary judgment test, asking whether you’ve raised a genuine factual dispute. Others require a “probability of prevailing,” which courts have described as showing the claim is supported by competent evidence rather than bare allegations. You don’t need to prove the entire case. You need to show the claim is real and substantiated enough to deserve a trial.
Your opposition can target either step or both. Winning at step one is cleaner because the court never reaches the merits.
Step One: Knock Out the Motion by Attacking “Protected Activity”
This is the strongest ground for most plaintiffs. The defendant has to establish that your claims actually arise from protected speech or petitioning. Several lines of attack can defeat that showing.
Focus on the Gravamen of Your Claims
Courts look at the core conduct your lawsuit targets, not just what the defendant happens to have said along the way. If your complaint alleges breach of contract, fraud, or some other wrong that merely involved speech as one component, argue that the gravamen of your claim is the underlying wrongful conduct, not any communicative act. A business that breaks a contract doesn’t get anti-SLAPP protection just because it communicated the breach in a letter. The question is whether the lawsuit is based on the protected speech itself or on separate wrongful conduct.
This matters most in mixed-conduct cases. If your complaint alleges both protected and unprotected activity, some courts will analyze each claim individually rather than treating the whole lawsuit as a SLAPP suit. Separate your claims cleanly in your complaint so that claims rooted in genuinely unprotected conduct aren’t swept into the anti-SLAPP analysis by neighboring claims that touch on speech. Courts have rejected “artful pleading” that disguises speech-based claims, but they’ve also made clear a complaint isn’t a SLAPP suit just because protected activity shows up somewhere in the factual background.
Argue the Speech Falls Outside the Statute
Every anti-SLAPP statute defines protected activity, and those definitions have edges. Common arguments:
- Private dispute, not public concern. Many statutes only reach speech connected to an issue of public interest. A dispute between two businesses over a private transaction may not qualify, even if one party made statements about it. The more purely private the conduct, the stronger this argument.
- Commercial speech. Several states exclude certain commercial speech from coverage, particularly advertising and marketing. If the defendant’s speech was primarily commercial, check whether your state’s statute carries that exemption.
- Illegal activity. Courts have recognized that conduct illegal as a matter of law may fall outside anti-SLAPP protection. The bar is high. In most jurisdictions, merely alleging illegality isn’t enough; you typically need conclusive or uncontroverted evidence that the conduct was unlawful. With strong proof of criminal threats, extortion, or fraud, though, this exception can end the motion at step one.
Check for Statutory Exemptions
Some statutes carve out entire categories of lawsuits — actions brought solely in the public interest on behalf of the general public, government enforcement actions, and certain commercial claims are common examples. If your lawsuit fits an exemption, the motion shouldn’t apply at all. Defendants rarely volunteer that an exemption exists, so comb the statute yourself.
Step Two: Prove Your Claims Have Merit With Evidence
If the court finds the defendant’s conduct was protected, you have to show your claims are substantiated enough to proceed. Plaintiffs lose here constantly because they treat the opposition like a motion to dismiss response and lean on the allegations in their complaint. That approach gets cases thrown out. You need evidence, not pleadings.
Submit Admissible Evidence for Every Element
Work through each element of each cause of action and confirm you have supporting evidence for all of them. The standard isn’t proof beyond a reasonable doubt or even a preponderance. You need a factual showing that, if believed, would support a judgment in your favor. Sufficient means real evidence, not speculation.
Your package should include signed declarations from people with firsthand knowledge. A declaration from you describing what happened, what you observed, and what damages you suffered is usually the starting point. Add declarations from corroborating witnesses. Attach documentary evidence — contracts, emails, text messages, financial records, anything that supports your version of events. Authenticate every document, meaning someone with knowledge identifies it in a declaration as genuine.
The most common failure at this stage is a gap. If one element goes unsupported, the court will likely dismiss that claim even if the rest of your showing is strong. Before filing, build a checklist of every element and confirm evidence sits behind each one.
Address the Defendant’s Defenses
Some courts will also weigh whether the defendant has raised a defense that defeats your claims as a matter of law. If the defendant asserts a privilege, immunity, or affirmative defense in the motion, don’t ignore it. Submit evidence or argument showing the defense doesn’t apply or that factual disputes exist about its applicability. An unaddressed defense can sink an otherwise solid opposition.
Working Around the Discovery Stay
Most anti-SLAPP statutes automatically stay discovery when the motion is filed. You can’t depose witnesses, send interrogatories, or request documents while the motion is pending. You have to meet your evidentiary burden with what you already have.
Many statutes allow a narrow exception: you can ask the court for limited, targeted discovery if you show it’s necessary to oppose the motion and wouldn’t unduly burden the defendant. File that motion early. Be specific about exactly what you need and why you can’t make your showing without it. Vague requests for broad discovery get denied.
The practical lesson is to gather and preserve evidence before you file the lawsuit. If you expect an anti-SLAPP motion, assemble your declarations and documents in advance so you aren’t scrambling to build a record under a discovery freeze.
Deadlines and What Goes in the Opposition
Anti-SLAPP proceedings move fast by design. Deadlines for filing opposition are tight — in some jurisdictions as little as two to three weeks for a complete filing with all supporting evidence. Missing the deadline can mean defaulting on the motion.
Your opposition should include a memorandum of points and authorities laying out the legal arguments, all supporting declarations and documentary exhibits, and a request for judicial notice if you need the court to consider public records or court documents. Serve everything within the applicable timeframe. Many courts hold oral argument, so prepare to address both the “protected activity” question and the “probability of prevailing” question.
If you genuinely need more time, file a continuance request early and explain specifically why — a key witness you’re still locating, a pending discovery motion. Courts resist extensions in this context because delay undermines the statute’s purpose, but a well-grounded request filed early does better than a last-minute one.
Should You Amend Instead?
Sometimes the best response isn’t opposition at all. If only some of your claims are vulnerable and others are not, consider amending the complaint to drop or reframe the problematic claims, eliminating the motion’s target while preserving your core case. There’s generally no automatic right to amend after an anti-SLAPP motion is filed, but courts have discretion to allow it.
Amending doesn’t necessarily eliminate attorney fee exposure on the claims that were struck. If the court treats the amendment as a concession that the original claims were meritless, you could still owe fees on them. The cleaner approach is to structure your complaint carefully before filing so that claims arising from genuinely unprotected conduct are cleanly separated from any claims that touch on speech or petitioning activity.
What Losing Costs You
The financial exposure is the part plaintiffs underestimate until it’s too late. Under the vast majority of anti-SLAPP statutes, a defendant who successfully strikes your claims is entitled to recover attorney fees and costs. In most states, that award is mandatory. The court must order you to pay what the defendant spent on the motion — drafting, reply, hearing.
These awards can easily reach tens of thousands of dollars in straightforward cases. If you’re considering a lawsuit that might draw an anti-SLAPP motion, fee liability belongs in your cost-benefit analysis from the start. If you’re already facing a motion, a weak opposition doesn’t just risk dismissal. It risks a five-figure bill for the defendant’s legal work.
Federal Court Caveat
If your case is in federal court, there’s an added wrinkle: the circuits are split on whether state anti-SLAPP laws apply in federal diversity cases. The First and Ninth Circuits have held that state anti-SLAPP motions are available in federal court, treating these statutes as substantive. The Second, Fifth, Eleventh, and D.C. Circuits have gone the other way, concluding anti-SLAPP motions conflict with Federal Rules of Civil Procedure 12 and 56 because they impose a higher burden on plaintiffs than federal pleading standards require. There is no federal anti-SLAPP law.1Congress.gov. H.R. 8864 – 117th Congress (2021-2022): SLAPP Protection Act of 2022
Practically, that means a state anti-SLAPP motion filed in the Ninth Circuit will likely be entertained, while the same motion in the Second Circuit will probably be denied as procedurally incompatible. In circuits that haven’t ruled, the outcome is unpredictable. If you have a choice of forum and expect an anti-SLAPP defense, the circuit split is worth factoring into where you file.