Federal Anti-SLAPP Legislation Now

The right to free speech is a good thing.  While the First Amendment guarantees this right, the thought of getting sued for something one says is enough to make most of us limit our speech.  A “SLAPP'” (Strategic Lawsuit Against Public Participation) is a lawsuit that serves no other purpose than to stifle speech.  For those not familiar with SLAPP suits and why they are so awfulthe Public Participation Project sums it up nicely:

SLAPPers across the political spectrum use the courts as a weapon against speech they don’t like.


Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigiousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

About half of the states in the U.S. have laws that protect their citizens from SLAPPs.  Among these states, the laws differ greatly.  And the rest of the states have no protection.   For bloggers, this is a bad thing.  Bloggers risk getting sued by a defendant living in a state with a weak anti-SLAPP law (or even worse, no anti-SLAPP law) on the books.  The result is that speech may be restricted even in states with the best anti-SLAPP laws.  This is why a uniform anti-SLAPP statute is necessary.

One example of where the anti-SLAPP law “sucks” is Maryland.  More than two years ago, Ken at Popehat articulated the flaw with Maryland’s statute:

. . . [t]he [Maryland] statute defines anti-SLAPP suits as ones that are brought “in bad faith” and are “intended to inhibit the exercise of rights under the First Amendment.” That’s a subjective inquiry into the intent of the plaintiffs. The plaintiffs can very easily claim they have no such censorious intent, but are only vindicating their rights and reputation, etc.  By contrast, good anti-SLAPP statutes . . .  avoid subjective inquiries into the intent of the plaintiff and rely on objective analysis of whether the complaint describes protected conduct.  (emphasis omitted)

So, the citizens of Maryland are not as free to speak their minds.  Just look at two recent Maryland cases:  Russell v. Krowne and Ugwuonye v. Rotimi. In both cases, the court declined to dismiss the lawsuits because defendants could not make the near-impossible showing of bad faith without going through discovery.

This approach is markedly different from states with tougher anti-SLAPP laws.  Take, for example, Nevada; there is no requirement that defendants somehow prove “bad faith” on the part of SLAPPers.  And so it is easier for defendants to get rid of SLAPPs.

Just this past Tuesday, a Nevada state judge dismissed a lawsuit by a high school teacher who sued her principal, district superintendent, and the faculty advisor for a student newspaper, claiming an article in the school newspaper damaged her reputation.   The court  found “[t]here [was] not a single sentence contained in the school article which [was] false or known by any district defendant to be false.”  Because the court did not need to make any findings as to the music teacher’s motivations for filing the lawsuit, it could dismiss it.

This seems like a perfectly good and reasonable result that should be possible everywhere.

Right now, there is legislation pending in Congress to establish a “good” federal anti-SLAPP law.  The bill is called the Citizen Participation Act (H.R. 4364).  This Citizen Participation Act recently received a fourth sponsor.  According to the blog Public Intellectual, Rep. Doyle (D-PA) joined the bill’s other three co-sponsors: Rep. Charles Gonzalez (D-TX), Pete Stark (D-CA), and the bill’s author, Rep. Steve Cohen (D-TN).

If you live any of these districts or states, then send one of these guys an email or a campaign contribution.  If you don’t, then get in touch with your Congressman and tell them to support this bill.


Updated to include Ken’s post about the downside of a federal anti-SLAPP law.

The Nevada anti-SLAPP Statute is at this link.

The Maryland anti-SLAPP Statute is at this link.

Photo Credit: Gruntzooki


~ by siouxsielaw on August 15, 2010.

8 Responses to “Federal Anti-SLAPP Legislation Now”

  1. Thanks for explaining this so clearly!

  2. Thanks for the mention. My issue with the Federal anti-slapp statute is it’s effect of federalizing defamation law. (I would link what wrote on that issue but I’m on a handheld). Increasingly though I think the Consistency and censorship concerns outweigh the federalism concern.

    • Anytime. And thanks for the comment. I’m a single issue gal on this one. I don’t want to have to worry about some baseless lawsuit against me getting past a motion to dismiss. I’m adding a link above to your post about federalism concerns. As always, you make great points about enacting a federal anti-SLAPP law.

  3. Personally, I like the idea of a federal anti-SLAPP law. It remains to be seen, if this is real possibility or not. good post.

  4. I have mixed feelings about a Federal statute. On one hand, I could used it when I was defending a local activist against a developer a few years ago.

    On the other hand, I don’t want the Federal government involved unless there is a Federal issue. And, in at least some cases, state laws and procedural codes already provide a means of relief.

    Perhaps if we increased awareness of the problem?


    • Thanks for the comment. I can understand why people would be hesitant to have this fall under a federal statute. Everyone is right to be leery of the federal government.

  5. As a SLAPP victim I can honestly say that this law is very important. I am a college student who is being sued for $750,000 for creating a Facebook group about a towing companies bad business practices. Here is a link to the NYTimes article about it: http://www.nytimes.com/2010/06/01/us/01slapp.html

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