By: Morgan Gaynor
One of our most cherished rights as Americans is our right to free speech.
Spirited discussion about public affairs is a prized part of our constitutional
tradition. Judges have recognized the “firstness” of our First
Amendment in helping to protect all our other rights.
Unfortunately, people who speak too loudly or clearly about public affairs
can face what legal observers called SLAPP suits. SLAPP means “strategic
lawsuits against public participation.” Although SLAPP suits are
often thought of as retaliatory suits brought by the government, they
can be brought by others as well. For example, a publicly traded corporation
with deep pockets might file a SLAPP suit to discourage people who protest
its environmental or safety record.
Many SLAPP suits are for libel or slander, but they can take many others
forms as well. They are defined by one key element: the person or entity
bringing it does not expect to win. Instead, the point of the case is
to “wear out” the other side by forcing it spend large amounts
of time and money defending the case. The idea is to make free speech
so expensive that people quit talking, even when the things they say are true.
People who bring SLAPP suits don’t worry about having their claims
decided at trial either. A common tactic in SLAPP suits is to keep the
case alive until the eve of a trial, then dismiss it. The defendant gets
only a Pyrrhic victory: the case is over, but they can’t recover
the substantial legal bills they incurred getting there.
About half of the states in the U.S. have anti-SLAPP laws. That sounds
encouraging, but this patchy legal protection is not very helpful in practice.
Public dialogue is rarely confined within state lines in the age of online
communication. Because of that, a SLAPP plaintiff can simply file a lawsuit
in a state with no SLAPP law on the books.
It’s also true that anti-SLAPP laws vary in their level of protection.
Florida, for example, does have an anti-SLAPP law on the books. However,
it only prohibits retaliatory suits by the government. A corporate bully,
or an extremely wealthy person, could not be brought to heel by it.
For that reason, some members of the U.S. Congress have introduced a bill
to create a federal anti-SLAPP law (the Speak Free Act of 2015). The law
would provide SLAPP protection across all 50 states. It would also provide
a party hit with a SLAPP suit with a prompt review by a federal judge
to see if the case has real merit. Finally, a party who beats a SLAPP
suit would get attorney fees and costs from the party who brought it.
Although our firm does not handle SLAPP suits, we do have an interest in
this issue. Our firm (along with many others) benefits from the free flow
of information in media and legal circles. We learn through those circles
about things like insurance company claims practices, vehicle defects,
and the track records of expert witnesses. Any activity that stifles that
flow of information makes it harder for us to do our jobs well. The old
saying really is true: the more information, the better.
This is not a partisan issue. The bill has both Republican and Democratic
sponsors. Anyone who believes in things like investigative journalism,
whistleblowing, blogging, and healthy, robust debate about public affairs
should support it. It will help preserve one of our most fundamental rights
and keep truly frivolous lawsuits out of court.