In an ironic twist, a defamation suit that could have been avoided entirely with a simple retraction has now escalated to include a constitutional challenge to a statute that usually prevents lawsuits over speech.
Former gubernatorial candidate Chris Jones amended his lawsuit against state Senate President Bart Hester (R-Cave Springs) on Tuesday. In the amended filing, Jones challenges the constitutionality of certain procedural aspects of Arkansas’s Citizen Participation in Government Act (“CPGA”), a 2005 statute that immunizes people from civil liability for some types of public comments.
Jones filed his original defamation suit against Hester in May after the senator tweeted that Jones was “taking a Pro Hamas Terrorist position” and that Jones wanted “to take a knee to terrorist sympathizers.” Prior to filing the suit, Jones, through attorney Tom Mars, offered Hester the opportunity to avoid the lawsuit simply by retracting the offensive tweet, but Hester did not accept the offer.
Instead, Hester, represented by lawyers from Friday, Eldredge & Clark, filed a motion to dismiss Jones’ lawsuit about two weeks ago. In that motion, Hester invoked the CPGA and claimed he was immune from liability under the statute. Jones amended his complaint in response to Hester’s motion.
The CPGA is what’s known as an “anti-SLAPP” statute because it prohibits “strategic lawsuits against public participation,” which are retaliatory lawsuits designed to scare people from exercising their right to free speech. Broadly, this is how it works:
- If a person makes a public statement that falls into one of two categories — a “privileged communication” or “an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the United States Constitution or the Arkansas Constitution in connection with an issue of public interest or concern” — and that person is subsequently sued based on the statement, they can invoke the CPGA in a motion to dismiss the lawsuit;
- Once invoked, the statute mandates that the circuit court hold a hearing on the CPGA argument within 30 days and requires that discovery and any hearings on any other argument or aspect of the lawsuit be suspended until after the mandatory hearing and until there’s been a ruling that the CPGA does not apply;
- The CPGA also requires that the plaintiff “verify” the complaint in the underlying lawsuit in a specific way and mandates that the suit be dismissed if the complaint is not verified.
In the amended complaint, Jones argues first that the CPGA does not apply to this case for three reasons: (1) the statute limits protections for an “act in furtherance of” specific rights to statements made in an official proceeding and comments made in connection with an issue being considered by a legislative body and does not apply to tweets; (2) contrary to Hester’s assertion, his tweet was not a “privileged communication” because it was not made “in regard to” legislative proceedings; (3) the CPGA specifically does not protect a person from being sued when “a statement or report was made with knowledge that it was false or with reckless disregard of whether it was false,” and Hester knew or should have known his comments about Jones were false.
Even if the CPGA applies, however, Jones argues the parts of the statute that suspend discovery, require verification of the complaint under threat of dismissal, and mandate a hearing within 30 days are unconstitutional under Amendment 80 of the Arkansas Constitution.
Under Section 3 of Amendment 80, the Arkansas Supreme Court has the sole “power to prescribe the rules of pleading, practice and procedure for all courts.” Because the CPGA imposes additional procedural hurdles on a plaintiff beyond what the Arkansas Rules of Civil Procedure require, Jones says, those portions of the statute are unconstitutional infringements of the power of the Supreme Court by the Arkansas Legislature.
In support of his argument, Jones cites a 2020 defamation case in Pulaski County where Judge Mackie Pierce explicitly held the CPGA’s procedural rules unconstitutional. (That ruling is not binding on the current case, but the court may consider it.) He also cites a 2007 medical-malpractice case in which the Arkansas Supreme Court struck down a statute requiring dismissal if a plaintiff did not file an affidavit from an expert witness within 30 days of filing the lawsuit.
In the latter case, the Supreme Court held the additional filing requirements acted as “a legislative encumbrance to commencing a cause of action that is not found” in the Rules of Civil Procedure. Because Amendment 80 gave the high court the sole power to make procedural rules, the court said, a statute that sets up an additional procedure violates the separation-of-powers doctrine and is unconstitutional.
Arkansas law requires a party challenging the constitutionality of a statute to give notice of the challenge to the attorney general, who may then decide if he wants his office to intervene to defend the statute. Jones’ amended complaint says notice has been given to Attorney General Tim Griffin via email.
Hester filed his motion to dismiss based on the CPGA on June 14. Under the statute, a hearing on that motion is required by July 15 (July 14 is a Sunday). No hearing date has been scheduled so far, according to the state’s online court-records database.
The case is Jones v. Hester, 60CV-24-3690, in Pulaski County Circuit Court, Judge Morgan Welch presiding.