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The Need for Federal Anti-SLAPP Legislation

By Peter Kurdock – March 30, 2011


Bipartisan legislation will soon be introduced in Congress to encourage civic engagement and protect consumers, unions, journalists, and other defendants sued in meritless lawsuits aimed at keeping them silent. The proposed law, like this 2009 bill, would provide grounds for early dismissal of so-called SLAPP actions as well as attorney fees and other protections against the chill of First Amendment rights.

Professors George Pring and Penelope Canan coined the term “strategic lawsuit against public participation” (SLAPP) more than two decades ago to describe lawsuits brought to retaliate against those who exercise their First Amendment rights. The quintessential SLAPP is a lawsuit against someone who speaks out about local development or environmental issues.

Since that time, the concept of SLAPP has broadened, as practitioners, academics, legislators, and judges across the country have recognized that such lawsuits are an increasingly used weapon against speech that some people and businesses would rather have silenced.

For example, if a group of parents complains about the management of their children’s charter school, the response by the school management may be to sue the parents for defamation. If a union seeks to have local governments issue resolutions against a food manufacturer, the response of the manufacturer may be to sue the union for racketeering and conspiracy. In each case, rather than answer speech with speech, some plaintiffs decide that the best way to silence critics is to drag them into court.

Journalists, newspapers, reporters, and broadcasters have all been the victims of SLAPPs. In fact, members of the media are frequent targets of such suits, as they often bring to light information that some would rather keep hidden. The lack of anti-SLAPP protections can result in protracted, costly litigation. In one prominent case, disgruntled apple-growers sued CBS and others, alleging more than $200 million in damages from a 60 Minutes piece about the harmful effects of the chemical alar, used in apple products. The suit was eventually dismissed after five years of litigation because the apple-growers could not point to any false statements in the broadcast. Auvil v. CBS 60 Minutes, 67 F.3d 816 (9th Cir. 1995) (per curiam). Invoking Louisiana’s anti-SLAPP law, the New York Times, ProPublica, and author Sheri Fink, by contrast, quickly won dismissal of a doctor’s lawsuit against them based on a Pulitzer-prize-winning article about events at a New Orleans hospital in the aftermath of Hurricane Katrina.

Consumers who have utilized the Internet to voice their displeasure with products and services have also often been the targets of SLAPPs and continue to be threatened with libel suits for nothing more than posting negative reviews and comments. As the New York Times recently reported, a consumer who posted negative reviews about an online appliance company on the website ResellerRatings received an email from the company threatening to file a libel lawsuit. In the message, the company claimed that the consumer agreed at the time of purchase to refrain from posting any negative comments about the seller. Consumers must agree to such terms to purchase any goods from the company. The consumer later removed the comments after receiving a refund. However, the company has indicated that the refund was “a one-time courtesy” and it will continue to require buyers to enter into its libel agreement before purchasing any goods.

SLAPPs can be an extremely effective way to silence someone, especially consumers exercising their First Amendment rights. As all attorneys know too well, even meritless lawsuits require a defense. Faced with the task of defending the suit, many defendants decide to settle. And that settlement might come at the price of your apology, “correction,” or agreement to refrain from speaking publicly about the issue ever again.

Federal Anti-SLAPP Legislation
The proposed federal anti-SLAPP legislation has several key components. The bill will allow defendants to file an early special motion to dismiss, and discovery is stayed, with limited exceptions, while the judge is deciding the motion. This provision is crucial to protecting a defendant. SLAPPs aren’t typical lawsuits; they do their work through the process of the litigation itself. The legislation will also allow a SLAPP defendant to recover attorney fees. This is critical because it allows a defendant who has valid defenses but could not otherwise afford legal help to secure an attorney on a contingency basis. Stopping the process and providing counsel is the only way to combat the SLAPP, which is why normal remedies, like a motion to dismiss for failure to state a claim, are inadequate.

Twenty seven states and the District of Columbia have enacted anti-SLAPP legislation. These laws vary dramatically. The remaining states lack legislative protection against SLAPPs, and the state laws cannot be invoked against federal claims in federal court. This disparity in protection encourages forum-shopping and clever pleading, and it magnifies the chilling effect of SLAPPs by making people uncertain about the level of protection they have. Although a California blogger would normally enjoy the protections of that state’s strong anti-SLAPP law, a plaintiff might evade such protections by suing the blogger in a state without an anti-SLAPP law or by filing claims in federal court. Fear of these possibilities can lead to self-censorship.

This is why a uniform federal law to protect First Amendment expression is needed. SLAPPs aren’t just random, meritless lawsuits. They are lawsuits that directly attack First Amendment rights. The level of protection for First Amendment rights should be uniform. It should not depend on where a defendant is hauled into court or how clever a pleader the plaintiff’s lawyer is.

SLAPPs happen every day, across the country, in response to a wide variety of civic participation. The proposed federal anti-SLAPP legislation would protect against such lawsuits, regardless of where they are brought.

The Relationship Between the Proposed Legislation and State Law
The proposed bill provides procedural protections for petitioning activity and speech about an issue of public interest. Any time a defendant is sued based either on petitioning activity or for having spoken out on an issue of public interest, the defendant will be able to remove to federal court and bring a special motion to dismiss the claim. To survive the motion to dismiss, the plaintiff will have to prove that the claim is legally sufficient and that it is supported by a prima facie showing of facts sufficient to sustain a favorable judgment.

So, in a state defamation case, the court is expected to apply state defamation law, as it would under diversity jurisdiction, to determine whether the plaintiff has stated a sufficient legal claim. The procedural protections provided by the proposed legislation would not interfere with existing state law. In fact, the requirement that a plaintiff prove merit under existing law is an elegant solution to the fact that SLAPPs are brought as all kinds of claims. No matter what type of claim a plaintiff brings, the plaintiff will have to show it has merit if it impinges on another’s First Amendment rights.

The events of the past few years highlight the need for more communication about important issues. A more open, searching dialogue about the mortgage industry, for example, is something that we should have welcomed. Financial health, public safety, environmental well-being, national security, and government accountability all demand an active, engaged citizenry. Technology now makes it possible for everyone to don the hat of journalist, editor, town crier, or anonymous pamphleteer. The proposed federal anti-SLAPP legislation is particularly timely. It protects and encourages critical open dialogue, whether that speech takes place in the town square, on a cable news network, or a blog or online chat room.

Keywords: litigation, First Amendment, SLAPP, legislation, Congress

Peter Kurdock is the legislative director for the Public Participation Project.

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