It’s a sadly familiar sight in courthouses around the country: A deep-pocketed corporation, developer or government official files a lawsuit whose real purpose is to silence a critic, punish a whistleblower or win a commercial dispute. That’s why California enacted a law in 1992 to give people a preemptive legal strike against frivolous lawsuits that seek to muzzle them on public issues. This sort of safeguard doesn’t exist in almost two dozen other states or in federal law, unfortunately, but a group of tech-friendly lawmakers is trying to change that.
Although the lawsuits in question can assert many different types of claims, including defamation and unlawful interference, the legal profession knows them as “strategic lawsuits against public participation,” or SLAPPs. Twenty-eight states have enacted anti-SLAPP laws that offer varying degrees of protection against such abuse, with California’s widely considered the broadest. It works this way: When someone is hit with a lawsuit that feels like a SLAPP, he or she can quickly file a motion to strike. The court then puts the original lawsuit on hold while determining whether the person was, in fact, being sued for exercising free-speech rights, petitioning the government or speaking in a public forum on “an issue of public interest.” If so, the court will toss out the lawsuit unless the plaintiff can show that the claims are legitimate and likely to succeed at trial. To guard against abusive anti-SLAPP motions, the side that loses such a case has to pay the other side’s legal fees.
California’s law has survived numerous challenges over the years, prompting those with sketchy claims to take them to states with weaker laws or to file their cases in federal court. A good example is the City of Inglewood’s legal action against a resident who published videos on YouTube blasting Mayor James T. Butts Jr. Rather than suing the resident, Joseph Teixeira, in state court, where the lawsuit would be subject to an anti-SLAPP motion, the city sued him in federal court for infringing the city’s copyrights by copying snippets of the official videos taken of the City Council’s public meetings.
Efforts to create a federal anti-SLAPP law started at least six years ago, but this year marks the first time that a sizable and bipartisan group is backing such a bill. One impetus is the growing number of SLAPPs aimed at Web-based businesses that provide a forum for the public to discuss, rate and criticize the world around them. The proposal — HR 2304 by Rep. Blake Farenthold (R-Texas) — has at least two dozen cosponsors. Borrowing heavily from California’s law and a similar statute in Texas, the bill would allow people sued in federal court or in states with little protection against SLAPPs to have a federal judge dismiss frivolous claims based on speech “made in connection with an official proceeding or about a matter of public concern.” The bill, which would leave in place strong state laws such as California’s, strikes a reasonable balance between the competing interests involved, and lawmakers should move it forward.