Could a National Anti SLAPP Law be on the Horizon?

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I'm sure that I could sell that time elsewhere). A SLAPP suit is a "Strategic Lawsuit Against Public Participation." In other words, it is a lawsuit that some hosebag files against a critic -- not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys's fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

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 litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

SLAPPs frequently end in settlement, conditioned on silence, apology or retraction, so important ideas are excised from the debate, and critical information - about health, safety, economic security, civil rights and liberties, and government abuse - is withheld from the public. Would-be participants in public life see the devastating effects of lawsuits - on life savings, employment, reputation and even staying insured - and think twice before speaking out.

Judge Nicholas Colabella, Jr., famously said of SLAPPs that a greater threat to First Amendment rights can scarcely be imagined. SLAPPs chip away at the will and ability to speak out, person by person, group by group, issue by issue. James Madison cautioned that "there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations," and his words ring true in the SLAPP context. (source)

About half of the states have some form of legislation against this, but only California and Oregon have anti-SLAPP statutes that are worth a damn. Flori-duh's is so watered down that it may as well only apply when a Unicorn shits on the Defendant's lawn. However, in California and Oregon, if a Plaintiff files a lawsuit that implicates the Defendant's First Amendment rights, the Defendant can file a "special motion to strike." Then, the Plaintiff will need to show that his suit is not just a baseless and harassing claim. If the Plaintiff can't do that, then the case is dismissed and the Plaintiff has to pay the Defendant's attorneys fees.

Congressman Cohen's bill is very similar to the California law (Cal. Code Civ. Proc. 425.16), and provides the right kind of remedies. One would think that the Republicans would line up behind this -- as it provides much-needed "tort reform." The Democrats... well, there was a time when the Democratic party seemed like the party that favored free speech. I am starting to doubt that, but Mr. Cohen should be able to marshall some of his Democratic colleagues to support this bill.

I can not stress how important a bill like this is. If you can, please write a letter to your Representative urging their support for HR 4364.

Copy this post, if you like. You don't even need to attribute, if you don't want to. (I hereby release the copyright in this post to the public domain). Distribute the news far and wide. If you ever use your First Amendment rights, then this bill matters to you.

And... to really make the other congressmen stand up and take notice, if you can afford to, send Congressman Cohen a campaign contribution with a note stating that you only sent it because of his sponsorship of this bill. I sent him a hundred bucks today.

Also... if you want help writing your congressman, click here.

Hat Tip to Eric Goldman


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