A federal anti-SLAPP bill with bipartisan co-sponsors was introduced in the U.S. House of Representatives this week. The SPEAK FREE Act, introduced Wednesday by Reps. Blake Farenthold, R-Texas, and Anna Eshoo, D-Calif., is seen as an important step toward nationwide protection against meritless suits that chill speech.
A federal anti-SLAPP bill would fill current gaps in protection by providing a uniform defense against SLAPP suits nationwide, addressing the problems of some courts not applying state anti-SLAPP laws in federal court and other states not having anti-SLAPP legislation at all. The SPEAK FREE Act is largely based on the strong anti-SLAPP laws of Texas and California. While some worry that the ease with which defendants can remove actions to federal court would be a burden on the federal court system, proponents of the law argue that the burden will be minimal and that the removal provision is critical to the law’s effectiveness.
The bill's other co-sponsors are Reps. Darrell Issa, R-Calif., Trent Franks, R-Ariz., and Jared Polis, D-Colo.
The anti-SLAPP statutes on the books in twenty-eight states, the District of Columbia, and the U.S territory of Guam vary widely, but their general aim is to make it easier for defendants to dismiss lawsuits designed to intimidate speakers or bury them in legal fees, even though the claims are without merit. By suing for defamation or other speech-related claims and embroiling defendants in litigation, SLAPP plaintiffs effectively silence valuable public discourse. Stronger anti-SLAPP laws put the burden of proof on plaintiffs to show that their claims are not frivolous and allow defendants to move for dismissal if that showing cannot be made. Some of the weaker state anti-SLAPP laws only apply to narrow categories of speech, such as speech made in connection with a government proceeding.
Mirroring the Texas and California anti-SLAPP laws, the SPEAK FREE Act broadly applies to lawsuits involving speech "in connection with an official proceeding or about a matter of public concern." The Act further gives relatively robust protection to speakers by putting the burden of proof on the plaintiff to avoid dismissal with prejudice by demonstrating that the claim is likely to succeed on the merits. The stay on discovery imposed during the adjudication of an anti-SLAPP motion to dismiss is also important in preventing a chilling effect on speech, as involving defendants in expensive, time-consuming discovery is another way to intimidate and silence. Finally, the Act awards costs and reasonable attorney's fees to a defendant who prevails on an anti-SLAPP motion.
A significant feature of the law is its allowance for removal of state court cases implicating speech issues to federal court for consideration of the anti-SLAPP motion. If the federal court dismisses the motion, the action is remanded back to state court.
Evan Mascagni, policy director of the Public Participation Project, which was a driving force behind the bill, said concerns that the removal provision will burden the federal court system with many more cases are unfounded. The number of cases involving anti-SLAPP motions is very small in comparison to the overall number of civil cases, he said, citing California as an example. And yet, the number is significant enough to show that SLAPP suits are a problem, he stated.
According to Mascagni, the law must provide for removing SLAPP suits to federal court because the protections against SLAPPs vary widely from state to state, with some states having strong anti-SLAPP laws and others having very weak laws or none at all. A federal law from which anyone can benefit will discourage the forum-shopping that happens now.
“The removal provision is for individuals who live in states without any anti-SLAPP protection, which is almost half the states,” he said. “For me, the whole purpose of a federal anti-SLAPP law would be to provide uniform protection against SLAPPs for all Americans, no matter what state they live in.”
Coming on the heels of a decision by the U.S. Court of Appeals for the District of Columbia, which ruled in Abbas v. Foreign Policy that the D.C. anti-SLAPP law was preempted and did not apply in federal court, the introduction of a federal anti-SLAPP bill is a welcome step forward for journalists. Federal anti-SLAPP legislation has been proposed in Congress in recent years but has not gained the momentum to become law. The House of Representatives first considered such a bill, the Citizen Participation Act of 2009, several years ago. The act stalled in the House Judiciary Committee without moving to the floor for a vote, and similar bills have not progressed farther.