Conservatives, libertarians and centrist freethinkers: lend me your ears. I come not to plead against the creation of a new law but instead to advocate for one. To be sure, there are many instances where reasonable minds argue that the failure to enforce existing laws militates against creating new ones. My friends in the Second Amendment arena have often made this point with frequent and convincing clarity. This is not so in the sphere of free speech, and we stand at a juncture where a new law – namely, a federal Anti-SLAPP statute – should be carefully crafted and adopted.
What is an Anti-SLAPP law?
Twenty-eight states have adopted statutes that address Strategic Lawsuits Against Public Participation. (SLAPP). In short, these laws generally apply in instances where speech on a matter of public concern is being suppressed not for the merits of the libel case, but instead the chilling effect of heavy litigation costs. SLAPP filers — usually powerful interests — frequently use libel lawsuits as a means of squashing public debate by crushing the speaker with bankrupting legal fees, or the chilling effect of facing those costs.
Anti-SLAPP laws have two general components. First, once the speaker convinces the court that the purpose of the defamation suit is less about repairing reputational damage and more about shutting up critics, certain powerful legal advantages are given to the speaker. Among these legal advantages are a freeze on any discovery by the plaintiff, expedited tracking through the court system and, in some cases, direct appeals.
From the plaintiff’s perspective, one of the most “unfair” hurdles to overcome in an Anti-SLAPP suit is that the plaintiff (without the ability to show facts normally gained through discovery from the defendant) is required right from the start to prove a “likelihood of success on the merits.” Left-wing editorial cartoonist Ted Rall sued The Los Angeles Times in 2016 and complains that “Times’ lawyers have unleashed a barrage of tactics to delay my suit and harass me. And it’s worked — for nearly a year, I haven’t been able to question Times editors or LAPD officials under oath or subpoena documents that would help me build my case — or my defense to the Anti-SLAPP motion. I’ll get my case before a jury in 2018 or 2019 — if I’m lucky.”
The second aspect of Anti-SLAPP laws is they are one of the few statutes that employ an English-style “loser pays” scheme. Neville Johnson, a California-based attorney who often represents libel plaintiffs and is a vocal opponent of Anti-SLAPP law says that the attorneys’ fees provision of Anti-SLAPP laws “is a scourge on American law” and is too often abused by law firms.
Johnson cited his case on behalf of fitness personality Richard Simmons, who was falsely accused by the National Enquirer of having undergone a sex-change operation. Although much of that case turned on whether that allegation is defamatory today, the judge considered the story as one of “public interest” and granted the Enquirer’s Anti-SLAPP motion.
“Anti-SLAPP laws are unfairly weighted against those people who’ve had their reputations damaged,” says Johnson, who adds that the Enquirer’s lawyers handed Simmons a bill for $220,000. Johnson calculated these costs as something on the order of a whopping $5,000 a page. (FUN FACT: Ernest Hemingway earned $61,429 in royalties for his last work, the 128-page magnum opus “The Old Man and the Sea.” Adjusted for inflation, that comes out to $4,480.31 per page in 2018. Obviously, Hemingway was in the wrong racket.)
Lawfare: crippling those who criticize
The dockets of our courts are filled with libel cases brought not to restore reputation, but to chill the citizenry’s ability to speak their mind or expose facts in the public interest. For example, in July 2006 drug manufacturer Morton Grove Pharmaceuticals, tried to use a libel suit to silence the Ecology Center of Ann Arbor, Michigan. The drug company objected to the Center’s opposition (supported by local parents) to the continued use of the chemical lindane as a treatment for head lice on children because of health-risk concerns. Citizens opposing real estate developments are often the target of SLAPP suits after they petition government at hearings. In one such case in Colorado, the court dismissed the developer’s suit against the citizens, noting that “It cannot be denied that suits filed against citizens for prior administrative or judicial activities can have a significant chilling effect on the exercise of their First Amendment right to petition the courts for redress of grievances.”
Other archetypical SLAPP cases include a Maryland blogger sued for exposing a politician’s false claim to live in the district they represent; a Florida lawyer with bad customer reviews tried to use libel law against a website that allows readers to rate or complain about attorneys; a Massachusetts police chief accused of bending the law to favor his relatives and friends tried to silence a small town newspaper that investigated the allegations; and a Canadian internet pharmaceutical seller sued a local Indiana television station over a broadcast featuring FDA reports about dangerous fillers in drugs bought online.
Attorney Laura Lee Prather, head of the Media Law Practice Group at Texas-based law firm Haynes and Boone has written extensively about the effects of SLAPP cases, and says that “Anti-SLAPP laws are critical to preserving our democracy. A single meritless lawsuit, if allowed to drag on for years, can financially cripple and effectively silence voices that oftentimes are exposing wrongdoing. Most small publishers and bloggers simply don’t have the resources to fight, but Anti-SLAPP laws level the playing field by ensure the viability of the case is tested at the beginning and the publisher is made whole if the claim has no merit.”
The American Revolution: free speech is in our DNA
It is a mistake to think that protections for citizens expressing themselves on public matters is an invention of the 20th century. The English Crown’s restrictive measures against the speech of the soon-to-be rebellious American colonists would drive much of the Founding Fathers’ motive force to declare an independent nation. Throughout the colonial era, individuals and editors were prosecuted for “seditious” remarks about members of government and their actions. No less a figure than George Washington proclaimed in 1783 that “The freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter.”
Thomas Paine’s 1776 illegal pamphlet “Common Sense” attacked monarchical government and called upon the American colonies to declare themselves free and independent. This went hand in hand with a series of astonishing events: the Boston Tea Party, the closing of Boston Harbor, the hostilities at Lexington and Concord and the Battle of Bunker Hill. When John Hancock, Samuel Adams, and other founding fathers signed the Declaration of Independence, they did not sign some empty philosophical statement: they signed their own death warrants under penalty of treason. In short, those who today identify themselves as tea partiers or constitutionalists have every right to claim a noble heritage of defending free speech. From this historical perspective, free speech and a free press is a core conservative value.
Although a sidebar, it is ironic that well-heeled and markedly left-leaning corporate media outlets often use Anti-SLAPP laws to defend their reporting, but at the same time criticize the Supreme Court’s “Citizen’s United” decision that concretized corporations’ First Amendment rights. Viacom’s part-time clown/part-time political guru Jon Stewart lamented sarcastically that “If only there were some way to prove that corporations were not people.” It’s a safe bet that if sued, Viacom (with 2016 revenues of $12.49 billion) would assert its First Amendment rights with an Anti-SLAPP defense, just like, well, an ordinary citizen blogger.
Failure to launch
Free press advocates have so far not been able to get a federal Anti-SLAPP law passed. In 2015, Rep. Blake Farenthold (R-Texas) introduced H.R. 2304, (The “SPEAK FREE Act”), and a Judiciary subcommittee heard testimony on the bill in 2016. At the time, the Los Angeles Times noted that with two dozen co-sponsors it was “the first time that a sizable and bipartisan group is backing such a bill.”
Sadly, the bill was never reported out of the subcommittee, and died of Acute Congressional Apathy. Sadder yet is that the venomous partisanship in today’s environment does not bode well for the law’s future. The mere act of agreeing with the “other” party — even on the most basic and effective laws — provides fodder for primary challengers screaming “fascist traitor!” “RINO!” or “Vichy Republican!” by those who put party over policy. In the meantime, on both the left and right, small voices speaking large truths face ruination by lawfare.
Charles Glasser was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.