Weak Anti-SLAPP Laws Don't Help Anyone

from the time-to-fix-it dept

We’ve discussed anti-SLAPP laws a lot around here. As of right now, the laws (if they exist) are at the state level and vary (greatly) in the details. There’s an effort underway to get a federal anti-SLAPP law in place, and the folks behind it have put a lot of thought and effort into making that law reflect some of the most important free speech protections found in the best anti-SLAPP laws out there. For those unfamiliar with the concept, SLAPP lawsuits are “Strategic Lawsuits Against Public Participation.” Basically, they’re lawsuits that people file for the sake of quieting someone down. Anti-SLAPP laws make it easy for those on the receiving ends of such lawsuits to get them dismissed quickly. Unfortunately, with such a variation in anti-SLAPP laws (and with some states having none at all), it’s a bit of a crapshoot these days if you live in certain states.

Paul Alan Levy has a discussion about a lawsuit in Maryland where the judge rejected an anti-SLAPP claim. The guy who couldn’t get the anti-SLAPP to work is blaming the judge, but as Levy points out, the real problem is with the Maryland anti-SLAPP statute, which can be interpreted incredibly narrowly. It’s a reminder of why a federal anti-SLAPP law would be a good thing.

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Comments on “Weak Anti-SLAPP Laws Don't Help Anyone”

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Andrew (profile) says:

Re: Re: Re:

Re “level of protection based on where you live”: of course, that’s how all laws are, even federal laws. The United States is still a place where we live. You’d have different protection from Canada, Belarus… why stop there?

The argument that you have ‘different protection based on where you live’ doesn’t fly in a world where any borders still exist.

Chris in Utah (profile) says:

Re: Re:

Going to have to agree here with the AC. You’ve said it yourself mike; Bureaucracies… well fill in the blanks.

This country was founded on the people haveing the power not the federal government. It may not be perfect system but let people govern themselves as our founding fathers intended. Though I praise you for making us aware of system that works and needs to be spread Mike. In fact the state that comes up with the best solution is then followed suit by other states; this is how innovations in the judiciary level of self governance are intended to work.

When you leave it to one body you get government interest before the peoples.

Chosen Reject says:

Re: Re: Re:

I very much agree here. The more citizens give power to the federal government, the less power citizens have. I have much more voting power in my home state/county/city than I do at a federal level. The vast majority of laws should be at most a state level. Going above that to the federal level just makes it so that when you think local laws needs to be changed, you get people yelling about our “international^W federal obligations”.

Anonymous Coward says:

I don’t get why so many laws telling people what to do and what not.

This should not be a problem for the courts ever.

Yeah badmouthing other is bad, can have repercussions bad or good, but should be resolved between the parties involved and not by a court.

Sometimes I think “being a man” have no meaning anymore, what is with people and those stupid things?

nasch (profile) says:

Re: Re:

Yeah badmouthing other is bad, can have repercussions bad or good, but should be resolved between the parties involved and not by a court.

Sometimes I think “being a man” have no meaning anymore, what is with people and those stupid things?

Sometimes people can’t come to an agreement about the issue. Many people (in the US anyway) believe that being a man and settling things between the parties sometimes involves violence. Combine those two elements and you have the need for the civil court system.

Jerry Leichter (profile) says:

The history of Federal regulations replacing state regulations is decidedly mixed. In many cases, the Federal regulations are quite weak, having been heavily influenced by the regulated entities. The classic example is in financial regulation, where (for better or worse) the states have been much more aggressive about protecting consumers than the Feds. (Granted, there are good arguments that some of what the state AG’s do is grandstanding that does good for their careers, not the citizens of their states.)

Perhaps the most important thing to watch for in any proposed Federal anti-SLAPP proposal is: Will it override state laws? Corporations will argue for the need for “uniform” regulations, which is code for such an override – and a victory is then followed by all kinds of proposals that weaken the law at the Federal level – thus weakening it in those states that provide stronger protections.

On the other hand, a Federal law that provides a floor level of protection, allowing states to go further – that would be a good thing.

— Jerry

Paul Alan Levy (profile) says:


Of course, federal preemption of state law can be a bad thing, or it can be a good thing. Title VII (and other parts of the civil rights laws) forbid states to discriminate, and prevent the application of state laws that do discriminate. Section 1983 (42 U.S.C. § 1983) preempts state law by forbidding state and local violations of constitutional rights. Is that a bad thing?

The point is, how does it work in this circumstance? There is no provision in the proposed Federal anti-SLAPP statute that explicitly addresses the issue of preemption, but of course it is intended to be used to prevent the use of state (or federal) courts as an instrument to suppress free speech. But once a case is removed to federal court, the Erie doctrine would, I think, continue to require the application of state law where not inconsistent with federal law. Thus, if the state had anti-SLAPP provisions that were more protective than the federal ones, those still ought to apply.

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