It’s time to pass a federal anti-SLAPP law to protect online speakers
Our country’s fair and independent courts exist to resolve serious disputes. Unfortunately, some parties abuse the civil litigation process to silence the rhetoric of others, rather than resolving legitimate claims. These types of lawsuits have been dubbed strategic public participation lawsuits, or SLAPPs, and they have increased in recent decades.
Plaintiffs who bring SLAPPs intend to use the high cost of litigation to harass, intimidate and silence critics against them. A deep-pocketed plaintiff who files a SLAPP need not win the case on the merits – putting financial pressure on a defendant, as well as the stress and time it takes to defend a case, they can take away a person’s free speech rights.
Fortunately, a bill introduced in Congress today, the SLAPP Protection Act 2022is intended to deter vexatious plaintiffs from filing these types of lawsuits in federal court.
To end lawsuits that seek to harass people into silence, we need strong anti-gag laws. When people are sued for speaking out on a matter of public interest, effective anti-SLAPP legislation allows for prompt review by a judge. If the case is determined to be a SLAPP, the lawsuit is dismissed and the SLAPP victim can recover their legal costs.
During the last years, more states have passed new anti-SLAPP laws or reinforced those that already exist. These state protections are effective against litigation in state court, but they do not protect those sued in federal court.
Now, a bill has been introduced that would make real progress in stopping SLAPPs in federal court. The SLAPP Protection Act 2022 [add bill number if you can] will provide strong protections for almost any speaker discussing matters of public interest. The SLAPP Protection Act also creates a process that will allow most SLAPP victims in federal court to have their legal costs paid by the people filing the SLAPP lawsuits. (Here is our blog post and letter supporting the last federal anti-SLAPP bill that was introduced over seven years ago.)
“Wealthy and powerful corporations are dragging citizens into baseless and costly litigation, to expose anyone who dares stand up to them to financial and personal ruin,” said the bill’s sponsor, Rep. Jamie Raskin (D-MD) during a audience yesterday in which he announced the bill.
SLAPPs all around
SLAPP lawsuits in federal courts are increasingly being used to target online activists and critics. Here are some recent examples:
Coal Ash Company sued environmental activists
In 2016, activists in Uniontown, Alabama – an impoverished, predominantly black city with a median per capita income of around $8,000 –were sued for $30 million by a Georgia-based company who put dangerous coal ash in the Uniontown residential landfill. The activists were sued for statements on their website and Facebook page, which said things like the discharge “has affected our daily life” and “You can’t walk outside and you can’t breathe”. The plaintiff settled the case after the ACLU stepped in to defend the activist group.
Shiva Ayyadurai sued a tech blog that reported it
In 2016, tech blog Techdirt published articles challenging Shiva Ayyadurai’s claim to have “invented email”. Techdirt founder Mike Masnick has been hit with a $15 million defamation lawsuit in federal court. Masnick fought back in court and his reporting remains online, but the legal fees have had a significant effect on his business.
Logging company sued Greenpeace
In 2016, the environmental association Greenpeace was sued along with several individual activists by Resolute Forest Products. Resolved sued for blog statements such as Greenpeace’s claim that Resolute logging was “bad news for the climate.” (After four years of litigation, Resolute was ordered to pay nearly $1 million in costs to Greenpeace, as a judge ruled that California’s strong anti-SLAPP law should apply.)
A pipeline company sued environmental activists
In 2017, Greenpeace, Rainforest Action, the Sierra Club and other environmental groups were sued by Energy Transfer Partner because they opposed the Dakota Access Pipeline project. Energy transfer said that the activists’ tweets, among other communications, constituted a “fraudulent scheme” and that the oil company should be able to sue them under RICO anti-racketeering laws, which were meant to tackle organized crime.
A congressman continued his criticism on Twitter
In 2019, anonymous Twitter accounts have been prosecuted by Rep Devin Nunes, then a congressman representing parts of central California. Nunes has filed lawsuits in an attempt to expose and punish two Twitter users who used the names @DevinNunesMom and @DevinCow to criticize his actions as a politician. Nunes filed those actions in state court in Henrico County, Virginia. The location had little connection to the case, but the lack of anti-SLAPP law in Virginia drew many plaintiffs there.
The same congressman sued the media for reporting on him
Over the next few years, Nunes has sued numerous other journalists who have published articles critical of her, using state and federal courts to sue CNN, the Washington Post, her local newspaper, the Fresno Bee, and NBC.
Rapid SLAPP relief
The SLAPP Protection Act meets the EFF criteria for a strong anti-SLAPP law. This would be a powerful tool for defendants stricken by a federal lawsuit seeking to strip them of their free speech rights. If the bill passes, any defendant prosecuted for speaking out on a matter of public interest would be allowed to file a special motion to dismiss, which will be decided within 90 days. If the court grants the speaker’s motion, the claims are dismissed. In many situations, speakers who prevail on an anti-SLAPP motion will be entitled to their legal costs.
The bill also will not reduce the protections provided by state anti-SLAPP laws. So, in cases where state law may be as good or even stronger, the current bill will become a floor, not a ceiling, on the rights of SLAPP defendants.
The EFF has been defending the rights of online speakers for more than 30 years. A strong federal anti-SLAPP law will bring us closer to the vision of an Internet that empowers anyone to speak up and organize for change, especially when speaking out against those with more power and power. resources. Anti-SLAPP laws strengthen the rights of all. We hope that Congress will soon pass the SLAPP Protection Act.