Anti-SLAPP reform has reached forty states. The ones it hasn’t reached aren’t behind. They’re chosen.
One week after a federal judge threw out its lawsuit, Energy Transfer filed the same case in a different court.
Not a revised case. Not a narrowed one. Within seven days of a federal dismissal — with the judge’s words that the evidence fell “far short” of what was needed still fresh — the Dallas-based pipeline company refiled in Morton County, North Dakota state court, naming the same defendants, making substantially the same allegations. The company’s CEO had already stated his objective wasn’t recovering damages. It was sending a message. The refiling wasn’t a legal maneuver. It was a venue decision.
North Dakota didn’t have an anti-SLAPP law.
That choice — deliberate, informed, executed within a week — is the thesis of this piece.
We’re told the anti-SLAPP reform story as a success. And in many ways, it is. Since 2019, the pace of state-level reform has accelerated sharply. Ohio passed protections in January 2025 — unanimously, bipartisan, no controversy. Iowa followed in May. Montana the same month. Delaware in September. South Dakota’s governor signed anti-SLAPP legislation on March 16 — two weeks before this piece publishes. As of today, forty states and the District of Columbia have anti-SLAPP laws on the books. The bills pass with minimal opposition everywhere they’re introduced. The Uniform Public Expression Protection Act, the model legislation that most states are now adopting, sailed through every legislature that has considered it.
The reform wave is real. But the map it has produced is not uniform. Ten states remain without functioning anti-SLAPP statutes: Alabama, Alaska, Michigan, Mississippi, New Hampshire, North Carolina, North Dakota, South Carolina, West Virginia, Wyoming. They aren’t distributed randomly. They share structural features — thin local press infrastructure, extractive industry concentration, strong institutional actors with deep legislative relationships. Their absence from the reform map is not an accident of calendar or political will. It is, in several cases, a condition that has demonstrable value to the kinds of plaintiffs who know how to use it.
The Energy Transfer refiling is the clearest evidence of what that value looks like in practice.
The same week Energy Transfer’s lawyers were drafting their North Dakota state complaint, a different set of lawyers was preparing for a very different kind of verdict, in a different unprotected jurisdiction. In Adams County, Ohio, seven sheriff’s deputies were about to lose a defamation lawsuit they had filed against a rapper named Afroman.
The facts of the Afroman case are almost too good to be illustrative. In August 2022, the Adams County Sheriff’s Office executed a search warrant on Afroman’s home — guns drawn, door kicked in — found nothing illegal, filed no charges, and returned less cash than they had seized. Afroman, whose real name is Joseph Foreman, used his home security footage to make music videos mocking the deputies. The videos went viral. The deputies sued him for $3.9 million, claiming defamation and invasion of privacy. The ACLU characterized the suit as a textbook strategic lawsuit against public participation. The case ran for more than three years. In March 2026, a jury cleared Afroman of all liability after several hours of deliberation.
Here is what everyone reported: Afroman won. Here is what almost no one reported: the same month the deputies filed their lawsuit, Ohio had no anti-SLAPP law. Had Ohio’s UPEPA — signed into law in January 2025, effective April 2025 — existed when that suit was filed, Afroman could have moved to dismiss within 60 days. Discovery would have been stayed automatically. If the motion succeeded, the deputies would have paid his legal fees. Instead he spent more than three years under a $3.9 million sword in a state that, while he was litigating, quietly passed the exact law that would have ended his case before it began.
Two cases. Same month. One defendant won after three years. The other lost $345 million. Both in jurisdictions without anti-SLAPP protection at the time of filing. The difference in outcome has to do with the specific merits of each case — but the structural vulnerability was identical. And in Energy Transfer’s case, the absence of protection wasn’t incidental geography. It was the point.
A Strategic Lawsuit Against Public Participation works by making the process the punishment. The plaintiff — typically an institution, a corporation, or a well-resourced individual — doesn’t expect to win on the merits. The goal is to impose costs: legal fees, discovery demands, depositions, years of distraction, the chronic background radiation of potential liability. The median cost of defeating a meritless defamation lawsuit in the United States is estimated at $39,000. The high end runs into the millions. Most SLAPP defendants aren’t Greenpeace. They’re local journalists, environmental activists, community organizations, the guy in Adams County Ohio who made some songs about the cops who kicked in his door.
Anti-SLAPP law short-circuits the mechanism. Early dismissal cuts off the cost runway before it can do its work. Fee-shifting turns the economics against the plaintiff. Mandatory discovery stays prevent the defendant from being bled out before the case even reaches a judge. The law doesn’t protect defendants from losing on the merits — it protects them from losing before the merits are ever reached.
What the reform map reveals is not a story of states gradually catching up. It’s a story of where early dismissal tools have been made available and where they haven’t — and the gap is not benign. According to EarthRights International, the fossil fuel industry used SLAPP suits and related judicial harassment tactics against at least 152 critics between 2012 and 2022. The pattern of target selection is legible: small organizations, individual activists, community journalists. The pattern of jurisdiction selection is equally legible: states where the plaintiff can impose the longest runway at the lowest procedural cost.
When Energy Transfer got kicked out of federal court in 2019, it had options. It could have appealed. It could have abandoned the case. Instead it refiled within the week in the state where the conditions were most favorable — a state with no anti-SLAPP protection, deep institutional ties to the pipeline industry, and a jury pool in Morton County that had lived through the Standing Rock protests firsthand. Greenpeace asked for a venue change four times. Four times the court said no.
The financial architecture around speech compounds what the law leaves undone.
Consider what options a typical SLAPP defendant has. The first is pro bono representation — available to the lucky few, chronically undersupplied relative to need, requiring the defendant to be both sympathetic and high-profile enough to attract attention. The second is litigation finance — the roughly $20 billion industry that funds legal costs in exchange for a share of recovery. Litigation finance has real utility in cases where the defendant can win something. In SLAPP defense, there’s typically nothing to recover. The defendant isn’t seeking damages. They’re trying to survive. Without a financial upside on the other end, litigation finance has nothing to offer most SLAPP targets. The market isn’t avoiding them — it structurally cannot help them. The third option is insurance. But repeated frivolous litigation raises the cost of directors and officers coverage for organizations, and some insurers have reduced exposure to the litigation risk environment entirely. The longer a case runs, the worse the insurance calculus gets.
In a protected state, the anti-SLAPP motion eliminates this problem before it compounds. The case goes away in 60 days. The plaintiff pays the fees. The defendant’s insurance costs don’t spike. The next potential plaintiff looks at the economics and thinks twice. The protection does more than win a legal argument — it resets the entire financial environment around the speech.
In an unprotected state, none of this applies. The suit runs. The costs accumulate. The financial infrastructure that exists to help litigants — insurance, third-party funding, fee-shifting — either doesn’t apply or actively deteriorates. The defendant faces years of litigation with no early exit, no fee recovery, and no market backstop. Not because the market has failed to reach them. Because the market has nothing to offer when there’s no floor.
This is what “the process is the punishment” looks like from the inside. And in the ten remaining holdout states, the process is still fully operational.
The reform story that gets told about anti-SLAPP legislation emphasizes how easy the passage has been — unanimous votes, bipartisan momentum, no organized opposition. That framing is accurate but incomplete. The more interesting question is not why the bills pass when they’re introduced, but why they haven’t been introduced in ten specific states where the structural conditions for SLAPP abuse are most favorable.
North Dakota adjourned its 2025 legislative session on May 3 — two months after the Greenpeace verdict, two months after the most visible demonstration in years of what happens when a state has no anti-SLAPP protection — without introducing a single anti-SLAPP bill.
The working hypothesis: the protection gap persists in the states where it persists not because legislators are unaware of the problem, but because the institutional actors who benefit from the gap are the same ones with the most weight in those legislatures. Anti-SLAPP law passes unanimously everywhere it’s tried. The question is who has an interest in making sure it isn’t tried.
That question is harder to answer definitively than the venue-shopping evidence, and it deserves that epistemic honesty. The North Dakota case is suggestive, not conclusive — Energy Transfer’s refiling there reflects the absence of protection, but doesn’t by itself prove that Energy Transfer’s influence kept protection absent. What is conclusive is the sequence: federal dismissal, immediate state refiling in an unprotected jurisdiction, four denied venue changes, no anti-SLAPP legislation introduced in the session after the verdict. The outcome of that sequence was a $345 million judgment against an environmental organization for participating in protests that were constitutionally protected.
Not because the law failed. Because the law was absent. And in North Dakota, it remains absent.
What would change my mind
If North Dakota introduces anti-SLAPP legislation in its 2027 session — unprompted, with no high-profile SLAPP case pending — that would suggest the gap is accidental rather than structural. If analysis of SLAPP filings showed no geographic concentration in unprotected states, the venue-shopping argument would weaken considerably. If litigation finance firms demonstrated active defense-side underwriting in unprotected states at comparable rates to protected ones, the financial architecture argument would need revision.
Until then, the map speaks for itself. Forty states have decided that the process should not be the punishment. Ten haven’t. Sophisticated plaintiffs know which ten.
Related: The Accountability Trap — Both pieces examine how legal structures determine who can participate in public life: one through platform liability, one through the cost of being sued for speaking.
Working Hypothesis tracks its published theses on a public scorecard. The tracked call for this piece: North Dakota will not pass anti-SLAPP legislation before January 2027. If the 2027 session produces a bill unprompted, the structural explanation for the gap needs revision.
If you found this useful, the best thing you can do is forward it to one person who would push back on it. I’d rather be wrong in public than right in private.