Definition
A special motion is a motion that requires the court's attention and a substantive ruling on the merits, as distinguished from a routine motion that may be granted as a matter of course without meaningful judicial deliberation. The term operates at two levels in modern legal practice:
1. In its classical sense, a special motion is any motion addressed to the court's discretion that must be heard, noticed, and formally determined — not simply entered by the clerk or allowed automatically. It stands in contrast to a "motion of course," which the clerk or court may grant without argument or opposition.
2. In modern statutory usage, "special motion" has acquired a more specific meaning in several jurisdictions as the designated procedural vehicle for challenging lawsuits that target protected speech or petitioning activity — the mechanism commonly associated with anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes. Under these laws, a defendant may file a special motion to strike a complaint when the claims arise from conduct protected under the First Amendment or analogous state free-speech provisions. These statutes typically impose a mandatory stay of discovery, fee-shifting to a prevailing movant, and an expedited hearing schedule — consequences that attach specifically to the "special motion" label.
The gap between these two usages is significant. A researcher encountering "special motion" in older materials is almost certainly reading about the classical discretionary-motion distinction. A researcher encountering the term in post-1992 California materials, or in materials from the many states that have enacted anti-SLAPP legislation, is likely reading about the statutory strike procedure.
---
Common Confusion
The classical meaning and the modern anti-SLAPP meaning share the same label but operate very differently. In the classical framework, "special" signals only that judicial engagement is required — it says nothing about the subject matter or consequences of the motion. In the anti-SLAPP framework, "special motion to strike" is a term of art with defined prerequisites, mandatory procedural consequences, and constitutional underpinnings. Conflating the two leads to serious misreading: a 19th-century treatise discussing "special motions" is not discussing anti-SLAPP law, and a modern California appellate opinion discussing a "special motion to strike" is not simply describing a discretionary ruling.
---
Why It Matters in Research
Temporal disambiguation is essential. Pre-20th-century sources using "special motion" — including Black's Law Dictionary in its early editions — use the term exclusively in the classical discretionary sense. That usage persisted well into the 20th century. The anti-SLAPP meaning emerged in California in 1992 with the passage of Code of Civil Procedure § 425.16, and proliferated as other states adopted similar statutes. Researchers working in historical sources should not project the anti-SLAPP meaning backward.
Jurisdictional variance is unusually sharp for this term. Not all states have anti-SLAPP statutes, and among those that do, the procedural label varies. Some use "special motion to strike" (California's formulation, widely copied). Others use "motion to dismiss" or "anti-SLAPP motion" without the "special" label. Federal courts have been divided on whether state anti-SLAPP statutes apply in diversity cases, adding another layer of jurisdictional complexity. The term "special motion" without a jurisdictional anchor is ambiguous in modern research.
In the classical sense, "special motion" often appears in procedure treatises paired with "motion of course" as its counterpart. When researching court rules and procedural manuals from the 18th and 19th centuries, the distinction helped practitioners understand what required notice to the opposing party and what did not. This usage survives in some older court rules and should be recognized for what it is.
Corpus connections: The anti-SLAPP special motion is functionally related to motions to dismiss and motions to strike, but it is procedurally distinct from both. Its unique features — mandatory fee-shifting, automatic discovery stay, interlocutory appeal rights in many jurisdictions — are not features of ordinary dispositive motions. Researchers moving from the encyclopedia entries on pretrial motions into case law should be alert to these distinctions.
---
Historical Dictionary Support
Black's Law Dictionary defines a special motion as "a motion addressed to the discretion of the court, and which must be heard and determined; as distinguished from one which may be granted of course." This is the classical formulation, focused entirely on the procedural distinction between discretionary motions and ministerial ones. Black's entry contains no reference to anti-SLAPP procedure, which postdates the relevant editions. The definition remains accurate for historical research purposes but is incomplete as a guide to modern usage. No other source dictionary was provided for this entry. The historical dictionary record, standing alone, captures only the first and older meaning of the term and should be read with that limitation in mind.
---
Jurisdictional Note
The anti-SLAPP "special motion to strike" is primarily associated with California and states that modeled their statutes on California's framework. Several states use different procedural labels for functionally similar protections. Federal courts sitting in diversity have produced conflicting decisions on whether state anti-SLAPP statutes — including their mandatory fee-shifting and discovery-stay provisions — apply in federal proceedings.
---
Encyclopedia Cross-Reference
Pretrial Motions — Motion to Dismiss (The Law Mind Criminal Law Encyclopedia)
Pretrial Motions — Motion to Suppress Evidence (The Law Mind Criminal Law Encyclopedia)
Motions to Reopen and Reconsider — Deadlines, Changed Country Conditions Exception, and Sua Sponte Authority (The Law Mind Immigration Law Encyclopedia)
---