Magazine article The News Media and the Law (Online)

Anti-SLAPP Statutes Face Setbacks

Magazine article The News Media and the Law (Online)

Anti-SLAPP Statutes Face Setbacks

Article excerpt

Congress may again consider an anti-SLAPP bill, but Washington state loses its law

Feature Page Number: 2

Not long after a federal anti-SLAPP bill with bipartisan co-sponsors was introduced in the U.S. House of Representatives last month, the Washington State Supreme Court struck down that state's anti-SLAPP law, saying it denied litigants their right to a trial by jury. As anti-SLAPP laws become ever more important to journalists, the loss of a strong state statute leaves many hoping that the federal effort will finally bear fruit.

If enacted, the federal SPEAK FREE Act, introduced by Reps. Blake Farenthold, R-Texas, and Anna Eshoo, D-Calif., would be an important step toward nationwide protection against meritless suits that chill speech.

A SLAPP suit is a "strategic lawsuit against public participation," or an attempt by one party to silence another in a controversy by burdening them with litigation.

A federal anti-SLAPP bill would fill current gaps in protection by providing a uniform defense against SLAPP suits nationwide, addressing the problems of some courts not applying state anti-SLAPP laws in federal court and other states not having anti-SLAPP legislation at all. The SPEAK FREE Act is largely based on the strong anti-SLAPP laws of Texas and California. While some worry that the ease with which defendants can remove actions to federal court would be a burden on the federal court system, proponents of the law argue that the burden will be minimal and that the removal provision is critical to the law's effectiveness.

The bill's other co-sponsors are Reps. Darrell Issa, R-Calif., Trent Franks, R-Ariz., and Jared Polis, D-Colo.

The anti-SLAPP statutes on the books in 28 states and the District of Columbia vary widely, but their general aim is to make it easier for defendants to dismiss lawsuits designed to intimidate speakers or bury them in legal fees, even though the claims are without merit. By suing for defamation or other speech-related claims and embroiling defendants in litigation, SLAPP plaintiffs effectively silence valuable public discourse. Stronger anti-SLAPP laws put the burden of proof on plaintiffs to show that their claims are not frivolous and allow defendants to move for dismissal if that showing cannot be made. Some of the weaker state anti-SLAPP laws only apply to narrow categories of speech, such as speech made in connection with a government proceeding.

Mirroring the Texas and California anti-SLAPP laws, the SPEAK FREE Act would broadly apply to lawsuits involving speech "in connection with an official proceeding or about a matter of public concern." The bill further gives relatively robust protection to speakers by putting the burden of proof on the plaintiff to avoid dismissal with prejudice by demonstrating that the claim is likely to succeed on the merits. The stay on discovery imposed during the adjudication of an anti-SLAPP motion to dismiss is also important in preventing a chilling effect on speech, as involving defendants in expensive, time-consuming discovery is another way to intimidate and silence. Finally, the act would award costs and reasonable attorney's fees to a defendant who prevails on an anti-SLAPP motion.

A significant feature of the law is its allowance for removal of state court cases implicating speech issues to federal court for consideration of the anti-SLAPP motion. If the federal court dismisses the motion, the action is remanded back to state court.

Evan Mascagni, policy director of the Public Participation Project, which was a driving force behind the bill, said concerns that the removal provision would burden the federal court system with many more cases are unfounded. The number of cases involving anti-SLAPP motions is very small in comparison to the overall number of civil cases, he said, citing California as an example. And yet, the number is significant enough to show that SLAPP suits are a problem, he said. …

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