Lawyer Daniel Horwitz has a wonderful write-up for NYU's Journal of Legislation & Public Policy on why we need a federal anti-SLAPP law. It's a quick, but thoughtful overview (and, full disclosure, I gave him a couple of small points while he was researching the article), that details not just the need for more SLAPP laws in general, but specifically a federal anti-SLAPP law. As he makes clear in the piece, there are just way too many ways to get around state anti-SLAPP laws (if a state even has one, which many don't):
Second, even in states that have enacted anti-SLAPP statutes, “[t]he scope of [] anti-SLAPP statutes varies greatly.”[ For instance, some states provide robust protection against SLAPP suits—applying to virtually all constitutionally protected speech and offering a cornucopia of benefits such as a specialized procedure for obtaining early dismissal, an automatic stay of discovery, and mandatory attorney’s fee-shifting. By contrast, other states’ anti-SLAPP statutes provide meager benefits and apply only narrowly, for instance, to speech made to government entities.
Third, even when a plaintiff files a SLAPP suit against someone who resides in a state with a strong anti-SLAPP statute, the substantive law of the defendant’s residence will not necessarily apply to the case. Instead, the law that governs the plaintiff’s claims will turn on the choice of law rules of the forum in which the suit was filed—an inquiry that can, and often does, result in the substantive law of the plaintiff’s residence or the place of injury applying instead.
It then notes the troubling trend, that we've discussed in the past, that many federal courts have now said that state anti-SLAPP laws cannot be used in federal court -- meaning that as long as they assert federal causes of action, they can get around many state anti-SLAPP laws. That wouldn't work with a federal anti-SLAPP law. That last one is important, because there are a variety of federal laws that are used for SLAPPs:
Plaintiffs also have had little difficulty filing SLAPP suits using federal causes of action—for instance, under the Lanham Act, 42 U.S.C. section 1985, the Copyright Act, and civil RICO statutes—which provide a straightforward means for plaintiffs to sue their critics, however baselessly, regarding protected speech.
From there, the article details how a federal anti-SLAPP law would solve many of these problems -- making sure it applied in federal court and to federal causes of action -- and that it would end cases more quickly and shift the fees to the frivolous, censorial plaintiffs. A key point made:
Where SLAPP suits are concerned, the process itself is the punishment, and many speakers cannot afford—or are understandably unwilling to bear—the heavy expense associated with that process at all.
As I said, the article is a quick read, even though it cites a ton of examples to make its points (28 footnotes for a 15 paragraph piece). And that's because the need for a federal anti-SLAPP law is so overwhelming and so obvious that it doesn't need more than 15 straightforward paragraphs. And yet, the movement to get one through Congress never seems to go anywhere, and it's been a major disappointment. Congress could stand up for free speech and against frivolous lawsuits, but it doesn't seem to want to get it done.
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.
As you probably recall, Donald Trump has repeatedly talked about "opening up our libel laws" and making it easier to sue people for defamation "and win lots of money." As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways -- from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.
So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California's anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:
"I think the actual malice standard is too stringent," says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. "If you look at Justice [Byron] White's opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it."
That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:
In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania's lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won't require her to pay the Daily Mail's legal bill if she loses.
In the case against us, Harder argued that the use of words like "liar" and "fake" constituted defamation. However, as Trump's lawyer defending him from Daniels' claim of defamation, Harder noted:
It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation.... Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.
[....]
Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.
And... in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn't always require consistent arguments.
A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California's) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.
Either way, this leaves the Daniels case in a weird sort of nowhere land -- and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can't in Texas. And his argument is to point to 9th Circuit precedent regarding California's anti-SLAPP law:
At the hearing (see the video recording here), Harder called Texas' anti-SLAPP statute a "substantive" change (rather than a procedural one), and added it was virtually identical to California's anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, "Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”
It's pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.
The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn't be allowed to use the TCPA, and Harder's response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:
"The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?" asked Wardlaw.
"At the time we filed it, the Klocke decision had not come about," answered Harder. "If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don't know."
And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):
Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would "forum-shop" their suits into such jurisdictions in order to gain advantage. Said Harder, "This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn't looking at forum shopping. I think it missed an important point."
Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically -- frequently in places with no or weak anti-SLAPP laws.
Anyway, as I noted when Harder/Trump initially won this ruling, I think it's the right ruling and I'm actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws -- though I'm skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.
Ever since coal boss Bob Murray threatened and then sued John Oliver and HBO over their story mocking his supposed concern for coal miners, I've been publicly (and possibly privately*) bugging Oliver and his team at HBO to do an episode specifically about SLAPP lawsuits and anti-SLAPP laws. And I'm happy to say that they listened! This past Sunday, Oliver's big story was all about SLAPP suits and anti-SLAPP laws, and focused again on Bob Murray, who finally dropped his case against Oliver and HBO earlier this year. It is well worth watching all the way up until the end:
While most of the attention is obviously going to that fairly epic final musical number of insults directed at Bob Murray, I wanted to call out a few important points that were mentioned earlier in the piece that might have been passed over by some:
Oliver highlights the real chilling effects of SLAPP suits in a variety of ways, including a newspaper that deleted all its coverage of Murray despite winning a defamation lawsuit he filed against it for covering a protest against his companies, and the fact that there are two ongoing lawsuits involving claims of harassment by Murray of employees that have received almost no news coverage at all. The point of SLAPP suits is to create a chilling effect on people talking about things. And it works unfortunately often.
The stunning costs of these lawsuits. Oliver notes that their own lawsuit cost HBO over $200k in legal fees and resulted in a tripling of the show's insurance premiums, despite the fact they won the case easily. I note this in particular, because I've heard some people argue that we don't need anti-SLAPP laws (or, relatedly, Section 230) because "private insurance" can fix the problems by protecting companies. Except, as the Murray/Oliver case shows, that's not at all true.
How blatant these cases can be. Oliver mentions the fact that long after Trump sued reporter Tim O'Brien for $5 billion for reporting that Trump wasn't actually as wealthy as he claimed to be, Trump admitted he "did it to make his life miserable, which I'm happy about." Oliver also has a clip of the lawyer for a waste disposal company, GreenGroup, literally laughing about suing some people for $30 million, because they raised concerns about the storage of toxic coal ash on Facebook.
Obviously, Oliver's show is first and foremost a comedy show, though done in a way that educates people about important topics. So I can't fault the show for not including everything that would be useful to show. However, there were a couple of points that I wish were better covered in the piece (though I recognize it's difficult to get everything covered in the 25 minutes or so they had, and also to keep things funny). Among them:
The wide variance in quality of anti-SLAPP laws. To simplify matters, Oliver just mentioned that they vary in quality, but focused on states with anti-SLAPP laws vs. those without them at all. But the difference in individual states matters quite a lot as we've discussed many times in the past. There are reasons why Devin Nunes filed multiple lawsuits in Virginia despite California almost certainly being the proper venue for his SLAPP suits.
The importance of a federal anti-SLAPP law in addition to good state anti-SLAPP laws. Oliver briefly mentions the lack of a federal anti-SLAPP law but mostly in passing to describe why lawsuits can be filed almost anywhere (highlighting how Bob Murray sued him in West Virginia, despite Oliver being in New York and Murray being in Ohio). But a federal anti-SLAPP law also has some importance beyond jurisdiction shopping for better state laws -- including that some courts (incorrectly in my opinion) argue that state ant-SLAPP laws cannot apply in federal court, even in states with anti-SLAPP laws.
Also, that you might not always be happy with who anti-SLAPP laws protect. Indeed, while Oliver talked about President Trump wanting to open up our libel laws to file more SLAPP suits, it might have also been useful to highlight that Trump himself used Texas' anti-SLAPP law to get the defamation lawsuit filed by Stormy Daniels tossed out.
I'll also admit to at least a tiny bit of surprise that Rep. Devin Nunes suing a satirical cow on Twitter didn't make the cut of cases for Oliver to mention, because it felt so deliciously perfect for Oliver to skewer.
Oh well, I guess there will always be time for Oliver to do a follow up show on SLAPP and anti-SLAPP In the future (sorry guys, not leaving you alone just yet!).
* In full disclosure, yes, I did spend a few hours across a few phone calls talking to people from Oliver's team after they reached out to me saying (I think, jokingly) that they were sick of me constantly writing about how they should do a show about SLAPPs. I have no idea if anything I said to them was even remotely useful but am thrilled to see them cover this issue.
A few weeks ago, Donald Trump's spokesperson claimed that he had "single-handedly brought back free speech." It was an odd thing to say for a variety of reasons. First, the US has really strong free speech protections and they haven't gone away (even if there are some threats to them). That is, free speech doesn't need to be "brought back" because it's already here. Second, Trump himself, just a few weeks earlier was quoted deliberately mocking free speech, claiming that people who support it are "foolish people." And then, of course, there's the fact that Trump has a very, very long and detailed history of both threatening to sue, and actually suing, over the speech of others. As Walter Olson noted:
Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.
That first case is instructive. I highly recommend reading the details. O'Brien wrote a biography of Trump which was mostly favorable to Trump, but which briefly mentioned that he might only be worth hundreds of millions of dollars, rather than billions, and Trump sued him over that claim. And as that link notes, Trump didn't just lose, he was "humiliated" by the courts. Incredibly, Trump still seems to insist that he "won" the case by basically redefining having the case totally tossed out of the courts as winning:
@julesmattsson Wrong, totally proved my case but didn't get damages because the libel laws in this Country suck!
And that leaves out plenty of other threats, such as threatening to sue Rosie O'Donnell for mocking him, threatening to sue competitor Ted Cruz for challenging his political views or actually suing Univision claiming that because its President of Programming posted an Instagram picture showing Trump next to Charleston, South Carolina, shooter Dylann Roof, with the text "No comments," that was somehow "defamatory." That lawsuit was just settled a few weeks ago, which is interesting because, as John Oliver recently noted, Trump insists he refuses to settle lawsuits.
Anyway, last Friday Trump made even more news, saying that if he wins he's planning to "open up" libel laws to make it even easier to sue. Given his statement in the Tweet above about how he won... except for what libel laws actually say, it's not surprising that he wants to change such laws.
Here are the key points. After talking about how he hates the Washington Post, and thinks Jeff Bezos just bought it for political influence, he notes:
If I become President, oh, are they going to have problems. They're going to have such problems.
... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.
.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...
That last line is said pointing to the media. Trump followed that up by extolling the virtues of libel law in the UK, which is famous for how horrible they are and how they're abused to silence speech around the globe.
Well, in England, I can tell you, it's very much different and very much easier. I think it's very unfair when the New York Times can write a story that they know is false, that they virtually told me they know it's false, and I say, why don't you pull the story, and they say, we're not going to do that, because they can't basically be sued. And you can't be sued because can you say anything you want, and that's not fair.
Of course, as Politifact noted, Trump is flat out wrong (shocker there) in saying that the NY Times can't be sued if it knowingly publishes a false story. That is, in fact, the standard necessary for defamation in this country.
Many others rushed in to point out something that seemed even more fundamental, which is that libel law is based entirely on state, rather than federal, statutes leading some, like Mathew Ingram at Fortune, to claim that Trump really can't do much to carry out those threats. Indeed, many commentators are treating Trump's confusion over the difference between state and federal laws (and his apparent confusion over key First Amendment precedents that would mean even if it were a federal issue, he couldn't just change the law the way he wanted to) as yet another example of Trump being ridiculously clueless on policy matters he's discussing.
And, of course, it is true that Trump appears to not understand NY Times v. Sullivan, one of the most important cases on the intersection of defamation and the First Amendment, which found that for public figures there is tremendous leeway in allowing speech, such that it is only defamatory if statements are not only false, but made with "actual malice." Trump, obviously, doesn't like this, but seems to think you can just "open up" the law, ignoring that the issue is not the law, but the 1st Amendment of the Constitution and First Amendment precedent.
That said, this is not a situation where you can just wave this off and say, "Oh, clueless Trump, he can't really impact free speech like that." As Marc Randazza explains in a CNN story, Trump can actually still create tremendous damage to the First Amendment if he were to become President. First off, you may have noticed that there's a vacancy on the Supreme Court, and a Senate insisting it won't look at any nominees until the next President comes into office. If that's the case, then it's entirely possible Trump could appoint someone willing to overturn NYT v. Sullivan. That might be difficult to do with the rest of the court, but it's not impossible.
On top of that, though, there are federal laws related to defamation that Trump could harm. For years we've talked about the importance of anti-SLAPP laws, which allow people sued for defamation, where it's clearly designed to just shut them up, to get those lawsuits tossed quickly and (often) to get their legal fees paid for. People who file SLAPP (Strategic Lawsuits Against Public Participation) hate these laws, and Trump appears to be a serial SLAPP filer. And, as we've been discussing, there's an ongoing push for a federal anti-SLAPP law that may have some real momentum. Yet, if that law actually passes Congress under a President Trump, it seems pretty obvious that it will be vetoed.
So, yes, it's easy to just mock Trump as clueless on this particular subject, and to note that it's not nearly as easy as he seems to think to just "open up" libel laws. But don't be fooled: if he were to become President, rather than "bringing free speech back," he will have plenty of power to create a serious chill on free speech in this country.
For many years now, we've talked about the importance of a federal anti-SLAPP law, that would protect the First Amendment. As we've explained, it is not uncommon for people to abuse our judicial system to file a lawsuit against someone for saying things that they don't like, knowing that no matter how frivolous, the threat (and cost) of the lawsuit is often enough to get them to shut up. That's why such "Strategic Lawsuits Against Public Participation" (SLAPP) are so popular. As it stands, anti-SLAPP laws are a complete hodgepodge of state laws. Some states have no anti-SLAPP laws. Others have weak ones. And a few have strong ones (though even some of those are under attack).
While there have been some attempts in the past, it appears that some in Congress are trying, once again, to create a federal anti-SLAPP law. This one has been introduced by Reps. Blake Farenthold and Anna Eshoo (with co-sponsorship from Reps. Darrell Issa, Jared Polis and Trent Franks).
The SPEAK FREE Act of 2015, will protect citizens from frivolous lawsuits that target their First Amendment Rights. Based on the Texas Citizens Participation Act, this bill will prevent bad actors from using a lawsuit to silence public opinion simply because they don’t agree with it. These lawsuits, known as SLAPPs (Strategic Lawsuits Against Public Participation), pose a threat not only to free speech, but to the modern information economy. Protecting our right to free speech drives economic opportunity by paving the way to new forums for expression, like YouTube, or by facilitating the rise and fall of products or services through competition and honest buyer feedback.
The SPEAK FREE Act will provide a federal backstop to state Anti-SLAPP laws by creating a process similar to that in Texas and California, where expensive court proceedings are delayed and claims can be dismissed if the defendant can show that a SLAPP suit cannot succeed on the merits.
The full text of the bill can be seen at that link (or below), and it does appear to be similar to the ones in Texas and California, making it much easier to dismiss bogus SLAPP suits, to halt discovery and to get awarded attorneys fees for such SLAPP suits. Also, unlike some state laws, it is not limited to just speech about the government, which is important. While there may be some specifics within the bill that are worth tweaking, overall, it seems clearly modeled on the very successful, and well-thought out bills already in place in Texas and California. It would be a huge boost to freedom of expression to have this become law.
Seeing as how some rather wealthy folks have been trying to kill off anti-SLAPP laws in states already, expect to see a lot of FUD come out about this attempt to put in place an anti-SLAPP law that protects free expression across the entire country.
