Don’t Let Them SLAPP You Around: The Case for Federal Anti-SLAPP Legislation

In September 2022, Representative Jamie Raskin introduced the SLAPP Protection Act to the U.S. House of Representatives.^[1] This bill is the most recent attempt to address the growing trend of lawsuits filed to suppress critical speech.^[2] SLAPP stands for Strategic Lawsuit Against Public Participation.^[3] These lawsuits bring baseless or unwarranted claims designed primarily to silence criticism by forcing the dissenting speakers to defend themselves in court, a process which frequently takes years and thousands of dollars to see through.^[4] The result is intimidation and financial pressure that stymies debate and chills free speech.^[5]

The Anatomy of a SLAPP suit

SLAPP suits are civil lawsuits filed in order to affect the speech of an individual or organization on a matter of public concern.^[6] The actual claims involved may be defamation, nuisance, invasion of privacy, or interference with contract.^[7] The defendants in the cases are often journalists, activist organizations, or individual citizens engaged in some form of protest or demonstration.^[8] SLAPP suits are primarily brought by the wealthy and powerful against those with less resources.^[9] Influential individuals and corporations punish negative press with expensive and time consuming lawsuits. Crucially, this discourages others from      expressing similar dissenting views in the future for fear of retribution.^[10]

In 2005, journalist Timothy L. O’Brien wrote TrumpNation: The Art of Being the Donald in which he discussed, among other things, the evidence of Donald Trump’s net worth.^[11] In 2006, O’Brien was sued by Trump for libel for an astonishing $5 billion in damages.^[12] O’Brien successfully defended the lawsuit, but it dragged on for five years before finally concluding in the appellate court of New Jersey in 2011.^[13] Trump has since made it clear that he was aware from the beginning that the lawsuit was without merit.^[14] This intent was readily apparent when Trump stated, “I did it to make his life miserable, which I’m happy about.”^[15] This is the motivation shared by many who initiate these SLAPP suits.

In 2017, John Oliver did a segment on his show Last Week Tonight centering on the coal industry where he discussed Murray Energy CEO Bob Murray.^[16] In that piece, Oliver stated, “I’m going to need to be careful here,” before explaining that the show had received letters threatening litigation when they reached out to Murray Energy for comment during the research process.^[17] In a follow-up piece two years later, Oliver detailed both the history of SLAPP suits initiated by Bob Murray and his company against news outlets and individuals as well as Last Week Tonight’s own legal battle.^[18] The case dragged on for two years before it was voluntarily dropped as Murray Energy prepared to enter bankruptcy proceedings.^[19] While Last Week Tonight was ultimately victorious, it provides an example of the harm these suits can do even when they are not successful. Oliver stated that defending the suit cost the show over $200,000 in legal fees and resulted in a tripling of the show’s libel insurance premiums going forward.^[20]

SLAPP Suits Now

As it stands, around two thirds of states have adopted some form of Anti-SLAPP statute, but there is no federal legislation on the issue.^[21] As noted by John Oliver, it is currently possible for a plaintiff to choose a state with no Anti-SLAPP laws in which to file their lawsuit.^[22] The lack of consistent federal protections leaves gaps which allow unscrupulous parties to dodge existing protections. The incentivization of forum shopping^[23] and potential compounding of the chilling effects due to inconsistent protections across states are additional reasons to enact federal legislation.^[24]

Among the states that do have Anti-SLAPP laws, the actual mechanism for fighting against SLAPP suits is not uniform.^[25] The general goal in enacting these statutes is to force plaintiffs to justify their suit early in the proceedings before significant time and resources are expended.^[26] Some states limit speech covered by Anti-SLAPP statutes to matters concerning the government, while others offer broad protection for all speech or exclude only narrowly limited exceptions.^[27] Some states stay all proceedings in the case when the Anti-SLAPP motion is filed while others stay only some proceedings, limit the scope of discovery, or allow the court discretion.^[28] Many states, though not all, offer the opportunity for an interlocutory appeal if the Anti-SLAPP motion is denied.^[29] The significant majority of jurisdictions with such laws have provisions awarding attorneys’ fees to a successful Anti-SLAPP movant, though this is not universal.^[30] Perhaps one of the most varied pieces of the different statutes is the requisite burden of proof. California and Georgia, among other states, require the plaintiff to validly assert an initially plausible case when met with an Anti-SLAPP motion.^[31] Others, including Maine and Massachusetts, require the plaintiff to substantiate the actual injury at the heart of their complaint in response to the Anti-SLAPP motion.^[32] Still others require that the plaintiff show the Anti-SLAPP law is not applicable in their case or that there is a substantial basis in law for the original claim.^[33] The statutes vary widely across the board. Because of the need for standardization, the Uniform Law Commission developed the Uniform Public Expression Protection Act in 2020.^[34]

The Proposed Law and How to Move Forward

Representative Raskin has introduced the SLAPP Protection Act, which is currently in committee.^[35] While the bill has a very long way to go before it could become law, it is worth considering what this bill contains. At a basic level, the bill creates a “special motion to dismiss” that can be employed by defendants in SLAPP suits.^[36] This motion is titled a motion to dismiss but bears more resemblance to a Rule 56 motion for summary judgment, employing some of the standards in its evaluation.^[37] There are several exceptions and considerable deference is given to the courts to modify terms, such as the stay of discovery and shifting of fees.^[38]

In contrast, the Uniform Law Commission’s recommended statute offers more rigidity and less judicial discretion in the fee structure and procedural elements.^[39] The motion proposed by the ULC uses a three-step analysis to determine scope, establish a prima facie case, and analyze legal viability.^[40] The legal viability analysis is similar to that used in both a Rule 12 motion to dismiss and a Rule 56 motion for summary judgment, but does not replace the use of either.^[41] Ultimately, the ULC’s proposed legislation has a more equitable foundation and a stronger analytical framework than the bill currently in committee.

Courts are largely in agreement that something needs to be done. A New York court evocatively described SLAPP suits by saying “[s]hort of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”^[42] The delicate balance that must be struck is weeding out these malicious and unfounded suits before they can do harm while still allowing meritorious claims to proceed. The equilibrium is difficult to maintain, but uniformity through a single, federal statute will be a strong step in the right direction.

[1] Chairman Raskin Introduces Legislation Establishing Federal Anti-Slapp Statute to Protect First Amendment Rights, Off. Rep. Jamie Raskin (Sep. 15, 2022), raskin.house.gov/2022/9/chairman-raskin-introduces-legislation-establishing-federal-anti-slapp-statute-to-protect-first-amendment-rights [hereinafter Press Release]. Congressman Raskin represents Maryland’s 8th district and is the Chairman of the House Subcommittee on Civil Rights and Civil Liberties. Id.

[2] Id. The term “SLAPP” was coined by professors Penelope Canan and George W. Pring in a 1988 article in which they attempted to characterize and gather data about the suits. See generally Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches, 22 Law & Soc'y Rev. 385 (1988). Canan and Pring noted that the types of speech sparking these suits included “parents complaining to their school board over unsafe school buses, campaigners against a zoning change, individuals complaining to government agencies about industrial polluters, and homeowners signing a referendum petition challenging a real estate development.” Robert Sprague, SLAPPed by RICO: Corporations Punishing Social Activism, 55 Am. Bus. L.J. 763, 770 (2018), citing Canan & Pring, supra, at 217-18.

[3] What is a SLAPP?, Public Participation Project, anti-slapp.org/what-is-a-slapp (last visited Nov. 15, 2022).

[4] Id.

[5] Id.

[6] Brandi M. Snow, SLAPP Suits, First Amend. Encyclopedia (2009), www.mtsu.edu/first-amendment/article/1019/slapp-suits (last visited Nov. 15, 2022).

[7] Id.

[8] See Last Week Tonight with John Oliver, SLAPP Suits (aired Nov. 10, 2019) (available at www.youtube.com/watch?v=UN8bJb8biZU). Oliver discusses a suit against citizen activists by a waste disposal company in Uniontown, Alabama and a suit by an energy company against activists that organized a protest and a local newspaper which led to years of appeals and led one appellate judge to comment on the “chilling effect” that these SLAPP suits have and suggest that the case was evidence for why “Ohio should adopt an anti-SLAPP statute.” Id., citing Murray v. Chagrin Valley Publ’g Co., 2014 Ohio 5442, ¶ 40 (Ohio Ct. App. 2014).

[9] Shannon Jankowski & Charles Hogle, SLAPP-ing Back: Recent Legal Challenges to the Application of State Anti-SLAPP Laws, Am. Bar Ass’n (Mar. 16, 2022), www.americanbar.org/groups/communications_law/publications/communications_lawyer/2022-winter/slapping-back-recent-legal-challenges-the-application-state-antislapp-laws/; Modern-Day SLAPP Suits, ACLU Ohio, www.acluohio.org/en/modern-day-slapp-suits (last visited Dec. 28, 2022) (listing politicians, police officers, and school officials among the public figures that sometimes employ SLAPP suits and companies in the agricultural industry and real estate business as some of the more common business plaintiffs); Dwight H. Merriam & Jeffery A. Benson, Identifying and Beating a Strategic Lawsuit Against Public Participation, 3 Duke Envtl. L. & Pol’y F. 17, 17 (1993) (“The most frequent example of a SLAPP suit is the land developer who sues members of a community who oppose a development project.”).

[10] Modern-Day SLAPP Suits, supra note 9 (summarizing the case SRW Associates v. Bellport Beach Property Owners, 129 A.D.2d 328 (N.Y. App. Div. 1987) and concluding that “neither side came away as victors; however, the developers were eventually able to complete the project and succeeded in chilling the residents’ speech against future development.”).

[11] See generally Timothy L. O’Brien, TrumpNation: The Art of Being The Donald (2005).

[12] Paul Farhi, What Really Gets Under Trump’s Skin? A Reporter Questioning His Net Worth, Wash. Post (Mar. 8, 2016), www.washingtonpost.com/lifestyle/style/that-time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3e-e4c2-11e5-b0fd-073d5930a7b7_story.html.

[13] Trump v. O’Brien, 422 N.J. Super. 540 (Super. Ct. App. Div. 2011).

[14] Farhi, supra note 12 (noting “Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point.”).

[15] Id.

[16] Last Week Tonight with John Oliver, Coal (aired June 19, 2017) (available at www.youtube.com/watch?v=aw6RsUhw1Q8).

[17] Id.

[18] Last Week Tonight with John Oliver, SLAPP Suits, supra note 8.

[19] Id.

[20] Id.

[21] Jankowski & Hogle, supra note 9.

[22] Last Week Tonight with John Oliver, SLAPP Suits, supra note 8 (noting that Murray sued Last Week Tonight in West Virginia “despite the fact that neither he nor I live there.”).

[23] Lauren Merk, Strategic Lawsuits Against Public Participation in the Age of

Online Speech: The Relevance of Anti-SLAPP and AntiCyberSLAPP Legislation, 5 U. Cin. Intell. Prop. & Computer L.J. 1, 17 (2021), available at scholarship.law.uc.edu/ipclj/vol5/iss1/1 (noting that a series of SLAPP suits filed in Virginia “have highlighted continued concerns about SLAPPs and forum shopping.”).

[24] Id. at 23 (discussing issues around diversity in federal court proceedings leading to uncertainty about which law(s) apply and suggesting that this may lead to “opportunities for parties who bring SLAPPs to take advantage of the federal court system.”).

[25] Laura Prather & Austin Vinning, Anti-SLAPP Legal Guide, Reps. Comm. Freedom Press (July 2019), www.rcfp.org/anti-slapp-legal-guide/ (comparing legislation from different states).

[26] Id. (describing the typical function of Anti-SLAPP laws as, among other things, “allowing defendants to secure a quick dismissal before the costly discovery process begins.”).

[27] Dan Greenberg & David Keating, Anti-SLAPP Statutes: A Report Card, Free Speech Inst. (Feb. 2022), www.ifs.org/wp-content/uploads/2022/02/Anti-SLAPP-Scorecared_FINAL-Interactive.pdf. A few states have very narrow scopes for Anti-SLAPP statutes, covering only narrow subject matter like Pennsylvania (covering specifically speech on environmental regulations). Id. at 9. Others are somewhat broader in scope, like Hawaii, which includes any matter pertaining to and directly addressed to a government body, or Arizona, which must be pertaining to government issues but need not be addressed to the government. Id. However, many states’ Anti-SLAPP legislation broadly covers any matter of public concern voiced in any forum, or contain limited exceptions (e.g., California, Georgia, Connecticut, and others). Id. at 21.

[28] Id. Washington suspends all proceedings upon the filing of the Anti-SLAPP motion while states like California allow judicial discretion to allow some discovery to proceed. Id. at 9. Some jurisdictions offer specific tests for the judicially permitted discovery, such as Nevada and the District of Columbia, which may allow limited discovery proceedings as necessary for a party to sustain their burden of proof for the Anti-SLAPP motion. Id.

[29] Id. Around half of the jurisdictions with Anti-SLAPP laws (fifteen of thirty-two) expressly include the right to an interlocutory appeal. Id. at 24.

[30] Id. While most states include a mandatory fee shifting provision, the District of Columbia includes only a presumption toward fee shifting and several states including Arkansas, Delaware, and Maine leave it up to judicial discretion. Id. Florida, uniquely, has a “loser pays” provision, which critics say can strongly discourage the filing of an Anti-SLAPP motion for fear of the potential financial burden in case of a loss. Id. at 19.

[31] Id. at 10. These states require plaintiffs to show there is a probability they will win at trial. Id.

[32] Id.

[33] Id.

[34] Uniform Public Expression Protection Act (Unif. Law Comm’n Proposed Official Draft 2020).

[35] See Press Release, supra note 1.

[36] Strategic Lawsuit Against Public Participation Protection Act, H.R. 8864, 117th Cong. (2022).

[37] Id. The movant must establish that the claim is based on a valid exercise of First Amendment rights “on a matter of public concern.” Id. After this, if no listed exceptions apply, the responding party must “present evidence establishing a prima facie case . . . under the standard of Federal Rule of Civil Procedure 56.” Id.

[38] Id.

[39] Uniform Public Expression Protection Act, supra note 30.

[40] Id.

[41] Id. at § 7, cmt. 5 (“Although Phase Three [legal viability analysis] uses traditional summary judgment and Fed. R. Civ. P. 12(b)(6) language, it does not serve as a replacement for those vehicles.”). Instead, the Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Motion for Summary Judgment are alternatives available to a defendant who does not successfully establish that they are being sued for a protected activity. Id.; Fed. R. Civ. P. 12(b)(6); Fed. R. Civ. P. 56.

[42] Gordon v. Marrone, 590 N.Y.S.2d 649, 656 (Sup. Ct. 1992).