Our country’s fair and independent courts exist to resolve serious disputes. Unfortunately, some parties abuse the civil litigation process to silence others’ speech, rather than resolve legitimate claims. These types of censorious lawsuits have been dubbed Strategic Lawsuits Against Public Participation, or SLAPPs, and they have been on the rise over the past few decades.
Plaintiffs who bring SLAPPs intend to use the high cost of litigation to harass, intimidate, and silence critics who are speaking out against them. A deep-pocketed plaintiff who files a SLAPP doesn’t need to win the case on the merits—by putting financial pressure on a defendant, along with the stress and time it takes to defend a case, they can take away a person’s free speech rights.
Fortunately, a bill introduced in Congress today, the SLAPP Protection Act of 2022, aims to deter vexatious plaintiffs from filing these types of lawsuits in federal court.
To stop lawsuits that are meant to harass people into silence, we need strong anti-SLAPP laws. When people get hit with a lawsuit because they’re speaking out on a matter of public concern, effective anti-SLAPP law allows for a quick review by a judge. If it’s determined that the case is a SLAPP, the lawsuit gets thrown out, and the SLAPP victim can recover their legal fees.
In recent years, more states have passed new anti-SLAPP laws or strengthened existing ones. Those state protections are effective against state court litigation, but they don’t protect people who are sued in federal court.
Now, a bill has been introduced that would make real progress in stopping SLAPPs in federal courts. The SLAPP Protection Act of 2022 [add bill number if you can] will provide strong protections to nearly all speakers who are discussing issues of public concern. The SLAPP Protection Act also creates a process that will allow most SLAPP victims in federal court to get their legal fees paid by the people who bring the SLAPP suits. (Here’s our blog post and letter supporting the last federal anti-SLAPP bill that was introduced, more than seven years ago.)
“Wealthy and powerful corporate entities are dragging citizens through meritless and costly litigation, to expose anyone who dares to stand up to them to financial and personal ruin,” said bill sponsor Rep. Jamie Raskin (D-MD) at a hearing yesterday in which he announced the bill.
SLAPPs All Around
SLAPP lawsuits in federal court are increasingly being used to target activists and online critics. Here are a few recent examples:
Coal Ash Company Sued Environmental Activists
In 2016, activists in Uniontown, Alabama—a poor, predominantly Black town with a median per capita income around $8,000—were sued for $30 million by a Georgia-based company that put hazardous coal ash into Uniontown’s residential landfill. The activists were sued over statements on their website and Facebook page, that said things like the landfill “affected our everyday life,” and “You can’t walk outside, and you can not breathe.” The plaintiff settled the case after the ACLU stepped in to defend the activist group.
Shiva Ayyadurai Sued A Tech Blog That Reported On Him
In 2016, technology blog Techdirt published articles disputing Shiva Ayyadurai’s claim to have “invented email.” Techdirt founder Mike Masnick was hit with a $15 million libel lawsuit in federal court. Masnick fought back in court and his reporting remains online, but the legal fees had a big effect on his business.
Logging Company Sued Greenpeace
In 2016, environmental non-profit Greenpeace was sued along with several individual activists by Resolute Forest Products. Resolute sued over blog post statements such as Greenpeace’s allegation that Resolute’s logging was “bad news for the climate.” (After four years of litigation, Resolute was ordered to pay nearly $1 million in fees to Greenpeace—because a judge found that California’s strong anti-SLAPP law should apply.)
Pipeline Company Sued Environmental Activists
In 2017, Greenpeace, Rainforest Action, the Sierra Club, and other environmental groups were sued by Energy Transfer Partner because they opposed the Dakota Access Pipeline project. Energy Transfer said that the activists’ tweets, among other communications, amounted to a “fraudulent scheme” and that the oil company should be able to sue them under RICO anti-racketeering laws, which were meant to take on organized crime.
Congressman Sued His Twitter Critics
In 2019, anonymous Twitter accounts were sued by Rep. Devin Nunes, then a Congressman representing parts of Central California. Nunes used lawsuits to attempt to unmask and punish two Twitter users who used the handles @DevinNunesMom and @DevinCow to criticize his actions as a politician. Nunes filed these actions in a state court in Henrico County, Virginia. The location had little connection to the case, but Virginia’s lack of an anti-SLAPP law has enticed many plaintiffs there.
The Same Congressman Sued Media Outlets For Reporting On Him
Over the next few years, Nunes went on to sue many other journalists who published critical articles about him, using state and federal courts to sue CNN, The Washington Post, his hometown paper the Fresno Bee, and NBC.
Fast Relief From SLAPPs
The SLAPP Protection Act meets EFF’s criteria for a strong anti-SLAPP law. It would be a powerful tool for defendants hit with a federal lawsuit meant to take away their free speech rights. If the bill passes, any defendant sued for speaking out on a matter of public concern would be allowed to file a special motion to dismiss, which will be decided within 90 days. If the court grants the speaker’s motion, the claims are dismissed. In many situations, speakers who prevail on an anti-SLAPP motion will be entitled to their legal fees.
The bill won’t reduce protections under state anti-SLAPP laws, either. So in cases where the state law may be as good, or even stronger, the current bill will become a floor, not a ceiling, for the rights of SLAPP defendants.
EFF has been defending the rights of online speakers for more than 30 years. A strong federal anti-SLAPP law will bring us closer to the vision of an internet that allows anyone to speak out and organize for change, especially when they speak against those with more power and resources. Anti-SLAPP laws enhance the rights of all. We hope Congress passes the SLAPP Protection Act soon.
Categories: Electronic Frontier Foundation