Fighting For Better Anti-SLAPP Laws: I'm Joining The Board Of The Public Participation Project
from the because-free-speech-matters dept
Anyone who’s read Techdirt for any length of time knows that I’ve spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP’s using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver’s clever take on the issue:
In short, SLAPP lawsuits are “Strategic Lawsuits Against Public Participation.” These are lawsuits — generally defamation lawsuits — that target someone’s speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:
- It shifts the burden quickly to the plaintiff to prove they have a viable case. This is important. Legitimate cases are not stopped by anti-SLAPP laws.
- It makes it easier for the court to then dismiss frivolous SLAPP suits quickly, hopefully reducing the hassle aspect of such lawsuits.
- It awards attorneys’ fees to the defendant, hopefully reducing the cost of facing such a lawsuits, and providing stronger incentives against potential filers of SLAPP suits.
Unfortunately, only a little more than half of all states have an anti-SLAPP law, and there is no federal anti-SLAPP law. Also, multiple circuits have decided that state anti-SLAPP laws should not be used in federal court (multiple circuits have gone the other way as well). Even among states that do have anti-SLAPP laws, they can vary widely from state to state in terms of what they cover, how they work, and how effective they are.
To sum it up: the state of anti-SLAPP laws is a mess, and it’s allowing powerful people to create real chilling effects and tie up critics and commentators with bogus, expensive, lawsuits.
For years, now, the non-profit Public Participation Project has been fighting to get better state anti-SLAPP laws passed and to get a federal anti-SLAPP law in place. They also keep track of the details of what states have anti-SLAPP laws, what they cover, and how various litigation around anti-SLAPP laws has turned out.
I’ve admired and relied on its work for years, and that’s why I was delighted this week to agree to join the board of the Public Participation Project, and help the organization fight for better anti-SLAPP laws to protect everyone’s right to free speech, and against abusive, censorious, litigation that makes a mockery of the 1st Amendment and freedom of expression.
Filed Under: 1st amendment, anti-slapp, federal anti-slapp, free speech, slapp, slapp suits
Companies: public participation project
Comments on “Fighting For Better Anti-SLAPP Laws: I'm Joining The Board Of The Public Participation Project”
Congrats on the new position, Mike!
Fingers crossed for great strides made.
I’m all for better laws that prevent frivolous lawsuits from being brought to court in expensive legal battles. But at the same time, I’m wary of anti-SLAPP laws that could block valid lawsuits.
You’ve spoken multiple times about how you believe that the Gawker v. Hogan lawsuit and its verdict was this terrible, disastrous thing. The plaintiff, however, proved that he had a viable case and Gawker was found guilty. Would the anti-SLAPP legislation that you wish to work with the PPP to create and turn into actual law have prevented Hogan from filing his case against Gawker on anti-SLAPP grounds? Because in my opinion, such an extension of anti-SLAPP law, if that is what you seek, would be chilling to those seeking justifiable restitution against publications that have defamed them.
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The SLAPP law raises the stakes. "Viability" is subjective.
The chilling effect will reverse in that now people will be chilled out of suing instead of chilled out of speaking. Loser-pays is standard in the rest of the world, though Section 230 is not. An attempt to reverse or clarify Section 230, which has yet to be done by SCOTUS, by definition is NOT frivolous.
Generally, a "spiteful motive" is not sufficient to make a lawsuit a SLAPP. It is when the filing of a lawsuit is itself the abuse of process. If someone hates you but has a case there is no penalty for filing it, and until the SCOTUS checks in on 230 all these defamation against that attempt to reverse it will continue unchecked because they are good-faith attempts to seek reversals of or exceptions to existing law.
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I don’t see how 230 has anything to do with SLAPP suits. At all. If someone posts defamatory speech on Twitter, that someone is responsible for that speech. If the person doing so was a Twitter employee and was either posting on behalf of Twitter or aiding someone else in posting the defamatory speech, Twitter would be on the hook. What part of “put liability where it belongs” do you not understand?
Yes. Yes, it is. To file a genuine defamation lawsuit is one thing; to file a bogus defamation lawsuit that you know has no chance of winning out of spite for the person(s) on the receiving end of the lawsuit (i.e., to shut someone up because you didn’t like what they said about you) is a SLAPP in the face to the court system.
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How’s that Grindr lawsuit coming along, Herrick?
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"Loser-pays is standard in the rest of the world, though Section 230 is not."
Have you somehow missed the dozens of threads were everyone points out, quite rightly, that other countries than the US they have other laws which fulfill the function section 230 does for the US?
Sweden, for instance, has the relevant protection built right into it’s basic telecommunications act.
The US needs 230 because unlike most other nations the US has a tort/libel system which, in general, the rest of the world looks at in disbelief.
Also, there is no link between SLAPP and section 230. A "Strategic Lawsuit Against Public Participation" can be launched no matter whether there’s any form of protection or not because it’s primary purpose is NOT to win a case but to intimidate the other side and get a judge to put a non-disclosure on the case so the defendant can’t go public.
The textbook example being Bob Murray running his mine in inhumane fashion causing multiple deaths and then hitting comedian John Oliver with a SLAPP for daring to talk about it – knowing that he wouldn’t win the suit, but with the effect of forcing John not to comment publicly on the case while it ran.
And Bob could do that whether there was 230 protection or not. In fact, the whole point of a SLAPP is that it’s normally unwinnable from the start.
Proving viability
How does one legally prove viability, though? Are there resources I can see to elucidate?
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Your question about "proving viability" is baseless. You could pose that same question about any ruling made by the court. If a lawsuit is ruled not viable, I assume the party ruled against can appeal it like any other ruling.
I agree with a lot of both sides here. I don’t think Bob Murray is a bad guy and John Oliver is hilarious.
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Did your canary die?
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And I’m sure you were well compensated for that statement.
I love the song at the end. Particularly as, to prove defamation, he needs to not only prove that the things they said about him were untrue and defamatory, but needs to prove that they are sufficiently close to reality that a reasonable person may believe that they could be true
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"…but needs to prove that they are sufficiently close to reality that a reasonable person may believe that they could be true…"
Oh, if we could only see Oliver’s legal team present Murray’s legal team with the question "Kindly demonstrate WHY the plaintiff believes the statement that plaintiff murdered the archduke ferdinand and advised hitler to take up politics would be considered plausible"
Good news!
As a prominent subject matter expert you will definitely be a tremendous asset for the PPP. The 1st Amendment needs all the help it can get in these increasingly censorious times.
It’s a sad commentary on the various bar associations and courts that an anti-slapp law is needed for their failures to hold attorneys accountable for filing such suits. If an attorney doesn’t know the difference between a legitimate suit, a blatantly frivolous one filed only to harrass or is totally without merit and one that could be a judgment call, that person needs to get a refund from the law school that handed him/her a law degree.
Attorneys are supposed to be officers of the court and should be responsible for knowing if they are wasting the court’s time with suits like the ones mentioned. If anyone here thought their attorney was equally incompetent with regard to representing them, would anyone here hire that attorney?
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Depends. Is Shiva Ayyadurai still lurking in the comments?
Speaking more seriously, though: there’s a point Ken White regularly makes on the All the President’s Lawyers podcast, and that’s that a lawyer’s efficacy can be viewed in more than one way. A legal strategy that may be bad in court may be extremely useful as PR. And that’s largely how SLAPP suits work: the people filing them don’t expect to win, they just want to make life difficult for people who criticize them. Devin Nunes’s bevy of SLAPP suits are an instructive example: he wants to do harm to the people who have criticized him, he wants to scare people who might consider criticizing him with the threat that if they do, he’ll sue them too, and he wants to feed a victim narrative that will play to his base.
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"and that’s that a lawyer’s efficacy can be viewed in more than one way."
Yep, and that was partially my point with respect to the bar and the courts sanctioning attorneys, even if it was buried somewhat. If the attorney is skilled enough to represent a client effectively, in general, he/she is skilled enough to know the difference between a lawsuit with merit and one that is frivolous. Given that, the bar and the courts are both not doing their jobs by not sanctioning those attorneys.
It’s depressing that we have to resort to the legislature to pick up the slack from the courts and the bar. Nunes’ suits should have been cut off at the ankles by the courts and the license of his attorney, Biss, suspended by the bar without ever needing to address it in terms of anti-slapp legislation.
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"Attorneys are supposed to be officers of the court"
Elsewhere, perhaps. In the US, not so much. The "lawyer" is expected to go to any length to see his client exonerated. It’s one of those things copypasted over from Ancient Rome the founding fathers could have left alone.
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That is not really accurate regarding what lawyers are supposed to do even if it is accurate regarding what they actually do. Attorneys are considered officers of the court and they are supposed to be bound by the ethics rules of the bar(s) they are admitted to. Those rules are a bit stronger than going to any length to represent a client. I think they just don’t care to enforce them very rigorously.
My father was a lawyer for 40 years and I know he’s turned down clients who wanted him to do something unethical. He still receives the Texas Bar Journal and I usually flip through it when I get a chance. I’m generally amazed at what it takes for an attorney to end up in the sanctions and disbarments section.
trouble is, Mike, like 1 or 2 0thers, you know what you’re talking about, what is needed and the benefits it will bring to all. unfortunately, that means that you’ll be wasting your breath with those that matter only listening to those who nothing except how to get money for nothing, especially out of those who have nothing
Congrats on the new position, Mike!
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