Pre-2026 Illinois Anti-SLAPP Motions: Second-Prong “True Goal” Is Subjective, Decided on Pleadings/Supporting Papers, and Does Not Permit Evidentiary Factfinding

1. Introduction

Anderson v. Smith addresses a recurring procedural problem under Illinois’s Citizen Participation Act (the “Act”), 735 ILCS 110/1 et seq. (West 2024): how courts should evaluate a motion to dispose of a claimed “Strategic Lawsuit Against Public Participation” (SLAPP) in cases filed before January 1, 2026 (i.e., before the 2025 amendments became applicable).

The dispute arose out of a 2017 press conference in a park preceding a public hearing on a hog farming operation. Nicholas T. Anderson supported the measure; Meagan M. Smith opposed it. Following a physical encounter at the event, Smith reported to police that Anderson pushed her; Anderson was arrested and later tried and found not guilty. Anderson then sued Smith for defamation (and later malicious prosecution), while Smith counterclaimed for battery and intentional infliction of emotional distress.

The key legal issue was not whether the underlying tort claims would ultimately succeed, but what legal framework governs a defendant’s request for immunity and dismissal under the Act—particularly the Act’s second prong: whether the plaintiff’s claims are “solely based on, related to, or in response to” the defendant’s protected petitioning/speaking/participation activity.

2. Summary of the Opinion

The Court affirmed the Fourth District’s rejection of the “meritless and retaliatory” rubric, but modified the Fourth District’s approach by rejecting any requirement that disputed intent issues be resolved through evidentiary factfinding. The case was remanded for further proceedings under the corrected framework.

3. Analysis

3.1 Precedents Cited

(a) Sandholm v. Kuecker, 2012 IL 111443 — The controlling foundation

• Procedural vehicle: Sandholm held Act-based immunity is properly raised as an “affirmative matter” under 735 ILCS 5/2-619(a)(9) (not as a 2-615 pleading attack), because statutory immunity defeats the claim even assuming legal sufficiency.
• Scope of the Act: The Act targets lawsuits whose “true goal” is to chill participation or stifle political expression, not suits “genuinely seeking relief for damages” from alleged tortious conduct. The Court in Anderson treats this as a primarily intent-focused inquiry (the plaintiff’s purpose in suing).
• “Meritless, retaliatory” language: Anderson clarifies that Sandholm used those terms descriptively for SLAPPs, not as mandatory elements the movant must prove under prong two.

(b) Glorioso v. Sun-Times Media Holdings, LLC, 2024 IL 130137 — Adopting the post-Sandholm three-prong test

• Test structure: Glorioso adopted the three-part “post-Sandholm” framework: (1) movant’s acts in furtherance of participation rights to obtain favorable government action; (2) plaintiff’s claims are solely based on/related to/in response to the movant’s exercise of those rights; and (3) plaintiff can defeat dismissal only by clear and convincing evidence that movant’s acts were not genuinely aimed at procuring favorable government action.
• Objective vs. subjective split: Glorioso describes prong one as objective (“reasonably calculated” to elicit favorable government outcome), while acknowledging the “genuineness” analysis can be subjective (Anderson relies on this, including Glorioso’s footnote n.3).
• Unresolved prong-two debate: Glorioso did not decide whether prong two required “meritless and retaliatory” showings; Anderson resolves that gap for pre-2026 cases.

(c) Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005 — The rejected First District gloss

• Ryan transformed Sandholm’s description of SLAPPs into a second-prong requirement that the claim be “meritless and … filed in retaliation.”
• Anderson rejects that conversion as inconsistent with the Act’s text and with how Sandholm actually analyzed prong two.

(d) First District progeny applying Ryan — Illustrating the narrowed approach now disapproved

The Court identifies the line of cases that followed Ryan and narrowed prong two into a legal-merits and retaliation inquiry, including: Prakash v. Parulekar, 2020 IL App (1st) 191819; Chadha v. North Park Elementary School Ass'n, 2018 IL App (1st) 171958; Goral v. Kulys, 2014 IL App (1st) 133236; Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545; Stein v. Krislov, 2013 IL App (1st) 113806; Garrido v. Arena, 2013 IL App (1st) 120466. Anderson signals that, for pre-2026 filings, those decisions’ “meritless and retaliatory” framing is not the correct statement of Illinois law.

(e) Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113 — Retaliation “indicators” remain potentially relevant, but not dispositive elements

• Hytel identified two possible retaliation indicators: timing (protected activity to filing) and disproportionate damages.
• Anderson preserves these as potential evidence relevant to intent, but rejects them as a blanket or mandatory test.

(f) Procedural/standard-of-review authorities supporting a “paper record” approach

• Arangold Corp. v. Zehnder, 187 Ill. 2d 341 — denial of summary judgment is ordinarily interlocutory, but Rule 306(a)(9) permits appeals of denied Act motions.
• Van Meter v. Darien Park District, 207 Ill. 2d 359 — similarity between summary judgment review and 2-619 review supports treating Act immunity like a 2-619(a)(9) affirmative matter.
• Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620 — defines SLAPPs and recounts legislative purpose; cited for Act context and statutory interpretation de novo review.
• Wanless v. Rothballer, 115 Ill. 2d 158 — “clear and convincing” burden does not preclude de novo review on appeal; used to rebut the need for evidentiary factfinding.

(g) Persuasive out-of-state anti-SLAPP decisions and statutory comparisons on evidentiary hearings

• Talandar v. Manchester-Murphy, 2024 VT 86 and Aguilar v. Eick, 344 A.3d 263 (Conn. App. Ct. 2025) — cited to support the proposition that, absent express statutory authorization, anti-SLAPP procedures typically do not permit evidentiary hearings, especially given tight timelines and discovery stays.
• Arizona and Nevada statutes are contrasted because they expressly allow evidentiary consideration; Illinois’s Act does not.

3.2 Legal Reasoning

(1) The Court anchors Act practice in 2-619(a)(9) and de novo review

Although Smith sought Act relief within a summary judgment motion, the Supreme Court treated the request under the 2-619(a)(9) framework because Act immunity is an “affirmative matter” (per Sandholm), and because the standards of review are similar (Van Meter). This choice matters: it reinforces that courts decide Act immunity by construing the pleadings/supporting documents in the light most favorable to the nonmovant and asking whether a genuine issue of material fact precludes dismissal.

(2) Prong two is about the plaintiff’s subjective “true goal,” not a required showing of “meritless and retaliatory” elements

The Court’s central move is interpretive and precedential: it reads Sandholm as requiring a subjective inquiry into whether the plaintiff genuinely seeks relief for personal harm or instead aims to chill participation in government. It rejects Ryan’s transformation of descriptive language (“meritless, retaliatory SLAPPs”) into formal elements the movant must prove under prong two, noting both that Sandholm did not say so and that the Act’s text does not impose such requirements.

(3) No evidentiary hearing: intent determinations are made from pleadings and “supporting documents”

The Fourth District would have required trial courts to hold an evidentiary hearing whenever a factual issue exists as to any prong. The Supreme Court rejects that approach as incompatible with (i) the Act’s 90-day decision deadline and (ii) the Act’s discovery suspension (subject to limited discovery). It also stresses that de novo review—repeated “without qualification” in Glorioso, Sandholm, and Walsh—does not square with trial-level evidentiary factfinding.

(4) A clarified consequence of unresolved factual disputes differs between prong two and prong three

• If a material factual dispute remains on prong two (movant’s burden): the movant has not met its burden, so the Act motion must be denied. Notably, the Court specifies the denial should be with prejudice (i.e., the movant does not get repeated bites at Act dismissal if intent cannot be shown on the permitted paper record).
• If a material factual dispute remains on prong three (plaintiff’s burden by clear and convincing evidence): the plaintiff has not carried its burden, so the motion must be granted and the claim dismissed under the Act.

(5) “Merit” evidence can be relevant, but not prerequisite

The Court draws an important distinction: whether a claim is frivolous or can be defeated on an essential element may be probative of the plaintiff’s intent, but it is not a required showing under prong two. This rejects the First District’s more merits-centric “SLAPP equals legally meritless” operational test. Accordingly, a legally viable claim may still be dismissed as a SLAPP—but only if the defendant meets the “difficult burden” of showing the suit was brought solely to deter or punish protected participation.

3.3 Impact

(1) Resolves an intra-state split for pre-2026 filings

Anderson harmonizes Illinois practice by disapproving the First District’s “meritless and retaliatory” second-prong shorthand (from Ryan) and confirming a “true goal”/genuineness analysis rooted in Sandholm. For pre-2026 cases, litigants should expect courts statewide to focus on subjective intent rather than demanding an up-front showing that the claim is legally baseless.

(2) Recalibrates what evidence matters on prong two

The decision signals that evidence bearing on intent—timing, damages demands, litigation posture, the plaintiff’s own pleadings and statements, and other record materials—may be central. But it also raises the bar for defendants: because evidentiary hearings are off the table and the record is constrained, defendants must make their best intent case from pleadings and permissible supporting documents.

(3) Strengthens the Act’s speed-and-cost design while limiting trial-court factfinding

By barring evidentiary hearings, Anderson reinforces the Act’s expedited nature (90-day ruling; discovery suspension) and reduces the risk that Act motions devolve into mini-trials. At the same time, it places pressure on careful drafting and early record development: the “paper record” must be sufficient to resolve prong two/prong three burdens without live testimony.

(4) Clarifies the “pre-2026” temporal boundary

The Court repeatedly confines its analysis to cases filed before January 1, 2026, because the legislature amended the Act in 2025 (including adding “freedom of the press” language and stating the claim need not “solely” pertain to protected rights) but made those amendments prospective only. Practitioners must therefore treat Anderson as a decisive guide to the pre-amendment Act, while remaining alert that post-2026 filings may evolve under the amended statutory text.

4. Complex Concepts Simplified

• SLAPP: A lawsuit filed mainly to intimidate or punish someone for participating in public affairs (e.g., speaking at hearings), by forcing them into costly litigation—even if the plaintiff does not truly care about winning on the merits.
• Citizen Participation Act immunity: If the defendant’s conduct is protected participation “genuinely aimed” at influencing government, the Act can provide immunity from liability and a procedural path to early dismissal.
• 2-619(a)(9) motion: A dismissal motion that assumes the complaint is legally sufficient but argues an external defense (here, statutory immunity) defeats the claim.
• “Second prong” (plaintiff’s “true goal”): The defendant must show the plaintiff sued solely to chill/punish protected government participation, not to obtain genuine compensation for personal harm.
• “Third prong” (defendant’s “genuineness”): Even if the defendant meets prongs one and two, the plaintiff can still avoid dismissal by proving, by clear and convincing evidence, that the defendant’s conduct was not seriously aimed at procuring favorable government action.
• Clear and convincing evidence: A higher standard than “more likely than not,” requiring a high degree of certainty, but still evaluated on the paper record here.
• De novo review: On appeal, the reviewing court re-evaluates the issue independently, rather than deferring to a trial judge’s credibility calls— one reason evidentiary hearings are inconsistent with the Act as construed in Anderson.

5. Conclusion

Anderson v. Smith sets a clear rule for Illinois Act motions in cases filed before January 1, 2026: the second prong is not a rigid “meritless and retaliatory” checklist. It is a subjective “true goal” inquiry into the plaintiff’s intent—whether the suit was brought to chill participation in government rather than to obtain genuine relief for personal harm. Equally significant, the Court rejects evidentiary hearings; trial courts must decide the Act motion on pleadings and supporting documents within the Act’s expedited procedure.

The decision both corrects a long-running doctrinal drift in parts of the appellate courts and fortifies the Act’s central design: early identification and disposition of lawsuits whose real function is to burden protected public participation—without converting Act proceedings into miniature trials.