Lowes v. Thompson

Oregon’s anti-SLAPP statute ORS 31.150 protects free speech in public matters, but these rights can be waived by contract.

After their divorce, Appellant and Respondent entered into a settlement agreement with a mutual non-disparagement provision.  Appellant sued Respondent for breach of contract and alleged Respondent made disparaging statements about Appellant to the media and Appellant’s colleagues.  Respondent filed an anti-SLAPP motion to strike Appellant’s breach of contract claim and argued her statements were protected speech. The court granted Respondent’s motion and dismissed the case, prompting this appeal.  Appellant argued the court erred when it granted Respondent’s special motion to strike and dismissed the breach of contract claim.  Appellant asserted the court erred because Respondent expressly waived her free speech rights under the nondisparagement agreement and this precluded her from using the anti-SLAPP defense.  Respondent argued the nondisparagement provision did not constitute a waiver of her constitutional right to free speech and Appellant failed to state a claim for breach of contract.  Oregon’s anti-SLAPP statute ORS 31.150 protects free speech in public matters, but these rights can be waived by contract.  The Court found Respondent’s statements were protected under ORS 31.150(2)(d) as they involved a free speech interest.  However, the Court held Respondent waived her free speech protections in the non-disparagement provision and that was sufficient to defeat the anti-SLAPP motion.  The Court further held the court erred in granting the motion to dismiss because Appellant stated a sufficient claim for breach of contract.  REVERSED and REMANDED.