Getting 'SLAPP'd' for getting involved — new protections considered

April 21, 2016

By Gene Policinski
Inside the First Amendement

Have you ever been SLAPP'd?

SLAPP stands for "Strategic Lawsuit Against Public Participation," and it's a technique as old as lawsuits to stifle competition brought by the rapacious moguls of the early Industrial Age, and as modern as lawsuits against online critics.

A section of the Communications Decency Act shields online sites from defamation suits and other kinds of civil actions over content posted by third parties — but not the people who post the material. Nearly one-half of states provide some protection against SLAPP lawsuits — some limited only to communication with the government — but a new U.S. House proposal, HR 2304, would add to those defenses, proponents say.

Rep. Blake Farenthold, R-Texas, introduced the "Speak Free Act" last June, co-sponsored by Rep. Anna G. Eshoo , D-Calif. In an interview Tuesday, Farenthold said the legislation is needed to protect people "who don't have $50,000" to spend on legal fees to, for example, defend against a lawsuit over a negative review posted on social media.

The "Speak Free" proposal tentatively is set for a hearing in the House Judiciary subcommittee in late May.

In response to a threat of legal action, many people simply take down the negative review or comment — which Farenthold sees as counter to the point of free speech. A broadcaster who also has worked in the computer field, Farenthold said he supports the First Amendment concept that "a review is, by definition, an opinion and there's no defamation in opinion."

Farenthold and others see increased concern over SLAPP actions — which, while expanding in recent years, still represent a small number within the total number of lawsuits annually — as reflective of the rise of "peer-to-peer" sites where people looking for specific services can find reviews and comments.

The proposed law would allow defendants to transfer lawsuits from state to federal courts, particularly valuable in 22 states that do not have an anti-SLAPP law or in those with weak protection. Farenthold said the law also will provide a means in federal court to quickly resolve a SLAPP lawsuit "before the legal fees run up."

The combination of breadth and speed has appeal on both Democratic and Republican sides of the aisle, and to conservatives seeking "tort reform" to reduce lawsuits and liberals aiming to protect civic activists. Farenthold said he has not seen significant push-back from companies, which might have been expected to oppose the act. "Overall, I think more people in business have the view that you don't need to worry ... if you are providing good service."

Bipartisan support encourages Evan Mascagni, policy director for the Public Participation Project, a nonprofit group supporting such legislation — who noted two earlier Congressional attempts failed to gain such backing. In an interview, Mascagni said, "The First Amendment is not a partisan issue. Americans understand the importance of free speech and petition activity in our society."

Another possible factor in increased attention to the bill is the attention paid this year to lawsuits and counterlitigation actions by GOP presidential front-runner Donald Trump, who also has called for weakening protections in existing defamation law that limit retaliatory lawsuits by public figures.

Anti-SLAPP supporters also note that the range of SLAPP actions is wide: From a lawsuit brought by a California nursing home lawsuit against two women involving an email sent to a legal aid lawyer, to actions against consumers complaining about a tax advice service, to news outlets for reporting unflattering personal details about a public figure. And some warn that even the potential for a lawsuit, despite speedy resolution, will deter some private citizens from even contacting government officials about a complaint.

Retaliatory lawsuits that seek mainly to punish are a misuse of legal remedies intended to repair the reputations of those wrongly damaged, produce truthful information or spur government response — not to be a tactic to punish public participation.

A longstanding thesis about the First Amendment is that "the antidote to speech you don't like is more speech, not less." Nary a mention of legal threats, expensive fees and drawn-out court battles in the 45 words that define our core freedoms.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at Follow him on Twitter: @genefac.

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