Monday, January 31, 2011

anti-SLAPP legislation

" The Problem with SLAPPs

For internet bloggers, facebook users, or anyone who has ever posted something on an internet forum, anti-SLAPP legislation is a good thing.

SLAPP stands for "strategic lawsuit against public participation," and refers to meritless defamation lawsuits filed solely to intimidate and/or financially ruin the speaking defendant. The likelihood of bloggers to both publish on controversial issues and be, shall we say, relatively low on financial resources to defend themselves, puts them at a particularly high risk of being "slapped."

"Slapping" generally occurs when a party publishes something negative about someone else—perhaps a business—and the business, concerned about damage to their reputation, sues the writer hoping the lawsuit, whether it has merit or not, will intimidate the writer into silence.

Anti-SLAPP legislation allows the speaking defendant, usually by filing a motion, to swiftly dispose of the lawsuit filed by the slapping plaintiff provided it meets certain criteria.[i] If the anti-SLAPP motion is granted, the burden is now on the plaintiff to show that he has a legitimate case against the defendant.[ii] If the plaintiff fails to carry his burden, i.e., cannot prove that his lawsuit has any merit, he is then forced to pay the defendant's legal fees and other legal costs. The statutes, in effect, make the act of knowingly suing someone on a meritless claim a risky, and potentially costly endeavor.

Currently, a majority of states have either enacted or proposed anti-SLAPP legislation.[iii] The statutes vary from state to state in strictness, that is, how much speech is protected by this burden-shifting tool. Though a bill has been proposed,[iv] there is currently no federal anti-SLAPP legislation.

The Legal Project takes a particular interest in this legislation, because effective anti-SLAPP statutes can protect those who write or blog about jihadism from predatory lawsuits filed to silence the writer. Middle East Forum director Daniel Pipes has examined in detail how for decades Islamists have used, or at least have attempted to use predatory lawsuits to silence critical voices.[v]

There is no question that the legislation works, in that it discourages the filing of meritless lawsuits,[vi] but there are still questions that remain, namely:

1. With the acknowledgement that states have adopted different types of anti-SLAPP legislation, which type is best to facilitate the free exchange of ideas on the internet?

2. Even if state anti-SLAPP legislation is a step in the right direction, is federal legislation an appropriate exercise of government power?

This report proposes that the answer to the first question is, the broader the anti-SLAPP legislation, the better it is for bloggers, and the Legal Project endorses the type of broad legislation passed by California, which is examined below in greater detail.

This article also proposes, to address the second inquiry, that federalism concerns are outweighed by the need to ensure the free exchange of ideas on the internet, and consequently, the Legal Project endorses bill H.R. 4364, a broad federal anti-SLAPP statute.

State Legislation

State statutes vary from being narrowly tailored exceptions that only grant privileges to very specific types of speech, to broad mandates that shield any speech concerning a public interest. As stated above, a SLAPP is a "strategic lawsuit against public participation," and states can, and do, choose to define "public participation" in a variety of ways. California, for example, defines "public participation" broadly to mean, "any…conduct in furtherance of…free speech in connection with [an] issue of public interest."[vii]

Massachusetts, by contrast, defines "public participation" as limited to more specific types of speech, such as speech made as part of a government proceeding.

[viii] Though there are many state anti-SLAPP statutes, they are essentially derived from one of two templates, which differ regarding how broadly they define "public participation." For the sake of simplicity, there are narrow and broad anti-SLAPP statutes.

But why does it matter how broad or narrow the statute is? Illustrative is the now well-know case of Justin Kurtz, a Western Michigan University student who published critical comments about a local car-towing company on Facebook.

The towing company sued Kurtz for defamation, and the lawsuit is now pending. Whether the state in which this type of lawsuit is filed has a narrow or broad anti-SLAPP statute can make the difference between the suit being dismissed, and the student being forced to incur massive legal fees do defend a case that is most likely bogus.[ix] Presently, Michigan does not have an anti-SLAPP statute.

The narrow statutes define public participation as something very specific, such as a statement made before a government body[x] or statement that is likely to enlist public participation in a government proceeding[xi] (as opposed to a statement that in and of itself is in the public interest). An example of a narrow anti-SLAPP statute is that of Massachusetts. It provides in part:

Section 59H. In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. …

… As used in this section, the words "a party's exercise of its right of petition" shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.[xii]

There are very limited types of speech that this statute would protect from a predatory lawsuit. The effect of this specificity is that our friend Justin Kurtz would probably not be able to benefit from this statute, as a court would under no circumstances hold that speech criticizing a towing company is part of a government proceeding or even likely to enlist public participation in a government proceeding.

Kurtz, in a narrow anti-SLAPP state like Massachusetts, would probably have to defend the case on the merits, and may decide instead to retract his comments about the towing company rather than face a lawsuit.

The reason he would consider retracting and avoiding a lawsuit is that even if he succeeded in having the lawsuit dismissed, he would still have to pay his own legal costs, as is customary in the American legal system.[xiii]

As illustrated by this example, narrow anti-SLAPP legislation is not of much use to bloggers. Perhaps if Kurtz created a Facebook group addressing gay marriage or the war in Afghanistan, his statements would be accorded anti-SLAPP protection under a Massachusetts-like statute due to the possibility of enlisting public participation in a referendum or some other government proceeding.

But it is unlikely that a Facebook page concerning a non-governmental matter would be protected, and more likely that someone like Kurtz would need to defend against a defamation suit, no matter how meritless, and even if he won, be subject to ruinous legal costs.

In reality, narrow anti-SLAPP statutes will encourage bloggers to retract lawful statements out of fear of litigation. We at the Legal Project find this prospect unacceptable.

Most states/territories that have passed anti-SLAPP legislation have enacted narrow, and therefore largely useless statutes similar to the one found in Massachusetts. Arkansas, Florida, Georgia, Hawaii, Maine, Maryland, Massachusetts, Missouri, Minnisota, Guam, Nebraska, Nevada, New Mexico, New York, Oklahoma, Pennsylvania, Tenessee, and Utah all have narrow anti-SLAPP statutes.[xiv] Washington state had a narrow statute but has recently adopted one with broader protections.

Within the narrow statutes, there are some differences in terms of how strictly "public participation" is defined. For example, whereas Hawaii only protects speech submitted to or made "before a government body,"[xv] Maine protects this, and in addition, protects statements that are "…reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration…"[xvi]

But regardless of these small discrepancies, all of these statutes are relatively useless to bloggers, as they severely limit the types of speech that are accorded anti-SLAPP protection. Justin Kurtz would most likely not benefit from either Hawaii's or Maine's narrow statutes.

The Legal Project is of the opinion that the type of anti-SLAPP statutes that would be useless to Justin Kurtz will also be useless to bloggers addressing issues relating to jihadism.

Statutes like Hawaii's certainly would not protect blogging relating to Islamism, as, for example, writing an investigative piece on terrorist funding surely isn't submitted to or made "before a government body."[xvii] Even slightly less narrow statutes, like Maine's, would not protect someone blogging about radical Islam, because it will be hard to prove that the speech "is likely to encourage consideration or review… by a legislative, executive or judicial body… or… other governmental proceeding…"

[xviii] Again, a statute like Maine's is likely designed to protect speech that addresses gay marriage, wars abroad, or some policy that involves public participation via the legal or political process. In states with narrow anti-SLAPP statutes, bloggers addressing jihadism would still be vulnerable to predatory lawsuits.

By contrast, broad anti-SLAPP legislation can be helpful—and in fact crucial—to protect bloggers' free speech. California, Indiana, Louisiana, Oregon, Rhode Island, Vermont, and Washington are currently the only states that have broad, effective anti-SLAPP statutes.[xix]

Kurtz would most likely be protected in California. All he would have to prove if he was being sued in that jurisdiction is that his speech was made "in connection with [an] issue of public interest,"[xx] which shouldn't be too hard to do, as many students in the neighborhood are likely concerned with unfair towing practices that are taking place.

A broad statute like California's will also protect Bloggers addressing radical Islam. Jihadism and related issues are certainly connected with the public interest.

If all states were to adopt an anti-SLAPP statute like California's, writers would be free to publish anything on the internet that was connected with the public interest without fear of a predatory lawsuit. Obviously, defamatory speech would still be actionable.

But those who would try to silence lawful speech that simply offends them would find it impractical to intimidate speakers who disagree with them by threatening suit.

Concerns about State Legislation

The concerns raised by state anti-SLAPP legislation can generally be addressed by examining California's statute, because it's the most broad and would encompass any concerns that would arise under narrower statutes.

Some worry that the legislation has a chilling effect for the plaintiff, that is, the party suing the speaking defendant.

The concern is that a plaintiff with a borderline claim will decide not to sue someone who may be actually defaming him, because the plaintiff is afraid of having an anti-SLAPP motion made against him, and potentially ending up paying massive legal fees.

[xxi] But this concern is alleviated with the inclusion of a provision that shifts the fees to the defendant if they file a frivolous anti-SLAPP motion,[xxii] like the provision in California's statute.[xxiii] It is important to remember that an anti-SLAPP motion can only be granted in the first place if the plaintiff's claim itself is frivolous.

So in a state like California, plaintiffs with borderline claims would not have to worry about having a predatory anti-SLAPP motion made against them, because if the defendants were to make such a motion, they would be exposing themselves to paying the same fees for a frivolous motion as the plaintiff would be subject to for filing a frivolous lawsuit. Adding a provision like California's alleviates concerns about chilling borderline defamation claims.

Another concern is that anti-SLAPP statutes are anti-employer, as the statutes could be used to prevent disclosure of anonymous bloggers defaming their bosses.

[xxiv] But this concern is unfounded, because the whole point of an anti-SLAPP statute is to protect speakers who cannot even have a prima facia case made against them for defamation.

[xxv] So in the case of a borderline defamation claim against an anonymous blogger, the blogger would not be able to utilize an anti-SLAPP statute to shield him from suit—it would have to go to trial. Borderline claims, by definition, would not be subject to anti-SLAPP motions.

California's anti-SLAPP statute has been criticized for ambiguity regarding its provision that punishes the filing of frivolous anti-SLAPP motions.[xxvi] But this is simply due to California's anti-SLAPP law cross-referencing an obscure, older statute as a standard to determine frivolousness rather than simply drafting new wording in the anti-SLAPP statute itself.[xxvii] Confusion naturally occurs when blending old rules with new law. This type of confusion, though, is an easily remedied technicality, and can be fixed by amendments or alternatively through case law, as other technicalities in California's statutes have been remedied.[xxviii]

Another concern is that the legislature is encroaching on discretion that should only belong to the trial judge. Advocates of the common law tend to be wary of legislation that confines a judge's discretion. But this concern has no place here because all anti-SLAPP statutes grant courts discretionary powers.

For example, even California's broad mandate states that speech made in connection with the public interest "shall be subject to a special motion to strike" (emphasis added).[xxix] The judge is under no circumstances required t grant the motion; the statute simply gives the defendant the opportunity to file the motion, and obliges the judge to consider if the suit has merit, or if the suit is predatory.

Some may also be concerned that anti-SLAPP legislation, especially the broad statutes, essentially function as a heightened pleading standard for plaintiffs. The pleading standard is how much information the plaintiff must present to the court in order to state a legitimate claim, i.e., commence the action.

For example, according to the Federal Rules of Civil Procedure, a plaintiff suing a defendant for defamation would normally be required to submit a "a short and plain statement of the claim showing that the pleader is entitled to relief."

[xxx] The California Code of Civil Procedure similarly has lax pleading requirements. In California, all that a defamation plaintiff has to state in his complaint is that the defendant's statement was "published or spoken concerning the plaintiff," and the rest can be sorted out at trial.[xxxi]

But, sticking with California, if the defendant were to make an anti-SLAPP motion, now the plaintiff has to show a "probability" of succeeding on the claim.

[xxxii] This is a different pleading standard, as the plaintiff now must show more to ensure that the lawsuit survives a motion to dismiss. The applicable pleading standard is tremendously important, and can make the difference between a case proceeding and a case being dismissed.

[xxxiii] However, just because pleading standards matter does not mean that elevating them for policy reasons is a bad thing. In fact, that's exactly what the United States Supreme Court did in the famous decision of New York Times v. Sullivan.

[xxxiv] The Court ruled that in order for a public figure to state a claim for defamation, he must show that the defendant either knew that his statement was false or acted in reckless disregard of falsity, otherwise known by the legal term of art of "actual malice."[xxxv] The Court extended the actual malice standard to claims for emotional harm in Hustler Magazine v. Falwell.

[xxxvi] In Hustler, the Court stated explicitly that the reason for imposing this heightened pleading standard was to encourage the very American policy of criticizing and lampooning public figures.[xxxvii] So in essence, the Court ruled that because free speech is so important, we are going to make it harder for plaintiffs to sue speaking defendants under certain circumstances.

This is precisely the idea behind anti-SLAPP legislation. The policy that the Legal Project seeks to promote is the free exchange of ideas, particularly on the internet. We believe that because free speech on the internet is just as important for democracy as lampooning public figures in a magazine, that rules which make it harder to file a predatory lawsuit against bloggers should be encouraged.

The concerns about state anti-SLAPP legislation are of little to no worry. California's anti-SLAPP statute was intended to be broadly construed, and has been applied broadly as well,[xxxviii] so if any problems would have arisen from a state anti-SLAPP statute, they would have arisen in California. No significant problems have arisen.

The small technicalities that have generated some concern have either already been remedied by amendments[xxxix] or contained by the common law.[xl]

But just because it is a good thing for states to adopt broad anti-SLAPP legislation does not necessarily mean that federal legislation is also a good thing. However, in this instance, because the proposed federal legislation manages to confer the benefits of state legislation on bloggers without abusing federal power, the Legal Project endorses H.R. 4364.

Federal Legislation: H.R. 4364

The arguments against federal anti-SLAPP legislation generally mirror the arguments against state statutes, and concerns can be addressed the same way. In fact, H.R. 4364 is modeled on California's anti-SLAPP statute.

For example, like California's law,[xlii] H.R. 4364 has a provision that punishes the filing of a frivolous anti-SLAPP motion.[xliii] Unlike California's though, in the federal bill there is no confusion caused by reliance on older statutes.

A unique concern about H.R. 4364 that was not an issue in any of the state statutes is that it inappropriately grants a completely new basis for federal subject matter jurisdiction and infringes on states' rights.

The argument is that this will cause a flood of litigation in the federal court system, and essentially federalize most defamation cases.[xliv] This concern is only partially valid, because according to H.R. 4364, once the federal judge rules on the anti-SLAPP motion, the matter is remanded back to state court.[xlv] Furthermore, removal is optional, so not all anti-SLAPP cases will be removed to federal court.[xlvi] Still, this is a legitimate concern, as it will most likely increase traffic in federal courts, and may send the wrong message to state judges, the message being "we don't trust you to handle free speech issues."[xlvii]

Even if the removal provision remains in H.R. 4364,[xlviii] though there will likely be a slightly increased amount of litigation in federal courts, state law will not be infringed.

This is because once in federal court, the judge is required to apply the appropriate state law to the case.[xlix] In addition, even if there is an increased flow of legislation into the federal court system, just as in any instance where a legal doctrine is expanded to allow for more lawsuits, the "flood of litigation" risk needs to be weighed against the benefits accorded to free speech. Here, we believe free speech prevails.

The issue of states' rights needs to be put in perspective. Anti-SLAPP legislation is not the first federal shield created to protect free speech. New York Times v. Sullian was also a mandate that applied to the whole nation, though in that instance it was, of course, the judiciary, not the legislature, that created the mandate.

Nonetheless, federal anti-SLAPP legislation should be looked at as part of a long tradition of special rules, effective on a national level, to defend free speech by circumscribing who can sue and for what when free speech is at stake.[l]

Lastly, it is worth noting that as long as some states have anti-SLAPP legislation and others do not, plaintiffs will simply look for the best jurisdiction in which to "slapp" the speaking defendant. Instead of encouraging forum shopping, we should encourage a national policy that favors free speech and discourages predatory lawsuits.


America is in the midst of an internet revolution, and an increasing amount of controversial speakers are disseminating their ideas through the internet.[li] Bloggers, who are particularly vulnerable to predatory lawsuits, will benefit immensely from broad anti-SLAPP legislation, because people who sue them will have to show a judge that their lawsuit has merit before they can bankrupt the speaker with legal fees.

More importantly, society will benefit from anti-SLAPP legislation, as it did from the New York Times v. Sullivan and Hustler v. Falwell Supreme Court decisions, because encouraging lawful speech and discouraging predatory suits is conducive to effective democracy.

We need to encourage both our state and our federal representatives to pass broad anti-SLAPP legislation so that bloggers, Facebookers, and anyone else who lawfully posts on the internet can confidently be as controversial as they please without fear of being silenced by those who may feel offended. After all, is there anything more American than controversial, offensive, politically incorrect, and yet protected speech? "

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