Anti-SLAPP laws on trial

A recent libel suit gave birth to a controversial judgment involving the District of Columbia Anti-SLAPP Act, which protects speech relating to issues of public interest.

AP Photo by Manuel Balce Ceneta

A federal judge denied a motion to dismiss under the D.C. Anti-SLAPP Act in the high-profile defamation case filed by former Agriculture Department official Shirley Sherrod against conservative journalist Andrew Breitbart.

The case brought by a ‘birther’ — someone who questions whether President Obama is a natural-born American and eligible to be president — ended prematurely when a U.S. district judge granted a magazine’s motion to dismiss under the D.C. Act.

Joseph Farah, the founder of WorldNetDaily.com, sought more than $120 million in actual, compensatory and punitive damages for a blog post on Esquire magazine’s website that made satirical comments about a book that his company published.

Judge Rosemary Collyer for the U.S. District Court in Washington, D.C., found that the subject matter of the blog qualified it for protection under the D.C. Anti-SLAPP Act, “as it concerns a ‘written or oral statement’ made in a ‘place open to the public or a public forum in connection with an issue of public interest,’” according to the opinion.

A SLAPP suit — or “strategic lawsuit against public participation” — is typically filed by parties with extensive resources in an effort to bury opponents in expensive litigation. Many states have adopted anti-SLAPP statutes that help journalists and others get such cases dismissed early.

Under legal rules, however, state defenses, like anti-SLAPP statutes, would not necessarily apply in federal court. This is one of the arguments Farah’s attorney Larry Klayman made to demonstrate that Collyer’s decision is flawed. He said his client will appeal the decision.

Joesph Farah v. Esquire is just one example of the recent lawsuits that highlight the debate over enacting a federal anti-SLAPP law to protect against meritless lawsuits brought in federal court. While there is a strong movement among journalists in support of federal protection, others outside the media fear the implications of such a law.

The anti-SLAPP defense in federal court

The anti-SLAPP statute in Washington, D.C., became effective in March 2011. Almost a year later, a U.S. District Court judge ruled that the special motion to strike provided by the D.C. Act is unavailable to defendants sued in federal court.

The decision was in a case between 3M, the multinational corporation, and Lanny Davis, a prominent Washington attorney and former advisor to President Clinton. After analyzing the relationship between the Federal Rules of Civil Procedure and the D.C. Anti-SLAPP Act, the court found that federal rules conflicted with the anti-SLAPP law, and therefore the federal rules governed.

Esquire’s attorney Laura Handman said the 3M decision is being appealed and is contrary to holdings in the Ninth, Fifth, and First Circuits, as well as the holdings of two other D.C. judges.

However, a federal judge in the district denied a motion to dismiss under the D.C. Act in the high-profile case between former U.S. Department of Agriculture rural development staffer Shirley Sherrod and conservative journalist Andrew Breitbart, who died unexpectedly this year. The judge noted that the act did not take affect until March 2011, one month after Sherrod filed the defamation suit against Breitbart.

Breitbart then appealed the ruling to the U.S. Court of Appeals for the D.C. Circuit. In July, the appeals court denied a motion to consolidate filed by Davis and Breitbart.

“Discussion of whether it applies in federal court is a significant issue,” Handman said.

Handman said the speech protective law does not provide an adequate remedy in federal court. She said there are several issues left to be resolved, including the examination of federal rules 12 and 56, which provide for motions to dismiss and for summary judgment, respectively.

“The origin of the SLAPP statute is to prevent libel cases, among others, that aim to silence dissenting voices,” she said. It “reduces the burdensomeness of such litigation that is directed at speech.”

SLAPP suits, for the most part, target speech about issues of public interest or concern, or public participation in government proceedings. For that reason, they generally include lawsuits based on media coverage of newsworthy events, statements about building permits or zoning changes, and statements made before a legislative, executive or judicial proceeding.

As a way to protect the public from such lawsuits, 27 states, along with the District of Columbia and U.S. territory of Guam, enacted specific anti-SLAPP laws.

“Not every state has [an anti-SLAPP statute], and there are tremendous differences between the state statutes that are on the books,” said attorney Laura Prather, who led the effort to enact an anti-SLAPP statute in Texas last year.

She said the biggest problem is that people can forum shop, meaning they can find a state without a strong statute or no statute at all and file their cases in that forum.

“It allows people to circumvent anti-SLAPP laws by choosing different jurisdictions,” she said.

Prather said the fact that there is a balance of decisions granting and denying motions to dismiss under the statute shows that the judiciary in Texas is properly applying the state’s recently enacted anti-SLAPP statute.

Texas’ anti-SLAPP statute is “a very broadly written statute that is highly protective of free speech rights,” Prather said. “It has done a tremendous amount of good in protecting” against meritless lawsuits.

Although the procedures required and protections provided under anti-SLAPP statutes vary among states, they generally allow the defendant to file a motion to dismiss the case early in the court proceedings because it involves speech on a matter of public interest. Under most of the laws, the plaintiff must then demonstrate a probability of succeeding in the suit. After considering this evidence, or lack thereof, the trial judge is statutorily authorized in most states to decide if the claim has any merit or is merely an attempt to intimidate or silence a critic.

While this motion is pending, the discovery stage of the case — a lengthy, expensive process during which evidence is obtained — is stayed. Moreover, successful defendants are entitled to recover costs and attorney’s fees, while losing ones are afforded the right of immediate appeal under many anti-SLAPP laws.

According to Handman, anti-SLAPP statutes are “mechanisms for early resolution of the claim.” Some statutes, like the one in California, also mandate attorney’s fees.

California’s anti-SLAPP statute “deters people from bringing frivolous claims because the burden of proof is really high, and they face the risk of attorney’s fees,” she said. As a result, “courts are less flooded with these cases.”

The California statute is commonly recognized as the nation’s strongest anti-SLAPP law and is the basis for drafts of many other bills, including a federal one.

It protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,” including online statements about issues of public concern posted on publicly accessible web sites available over the Internet.

If a defendant can establish that the lawsuit arose from protected speech or petition activities, the judge will grant a motion to strike under the California anti-SLAPP statute unless the plaintiff can show a probability that he will prevail on the claim.

Eric Lieberman, the vice president and general counsel for The Washington Post, said the most important feature of all anti-SLAPP statutes is that they provide an early chance to dismiss a libel case without costly discovery.

“One of the biggest challenges a news organization faces is the expense of defending libel suits,” he said. “News organizations should not curtail their journalism out of fear of incurring significant costs.”

Lieberman said a notable consequence of not having a federal anti-SLAPP statute is the fact that a person could be sued in federal court on a state law libel claim, and the state anti-SLAPP law may not apply in that court. If a federal law is passed and a person in a state without an anti-SLAPP statute is sued for libel in a federal court, a federal law would provide him or her with protection. Similar concerns are highlighted in the widespread debate over the need for a federal shield law that would protect journalists facing subpoenas in federal court.

“It’s important to make sure there are the same protections in federal court as in state court for those being charged with libel,” he said. “A federal law would provide a unified degree of protection in SLAPP suits in federal court, as opposed to relying on state statutes — assuming there is one.”

Pushing for Federal Legislation

To protect petition and free speech rights, advocates are working to enact federal legislation to provide protection from SLAPP suits.

The most recent draft of the proposed federal anti-SLAPP law would provide:   the ability to move to dismiss the claim early in the process;  an expedited hearing schedule by the court;  the right to appeal a denial of the motion immediately;  delayed discovery proceedings; and  the ability to transfer the suit from state to federal court. 

“SLAPPs have a really detrimental effect on people’s First Amendment rights,” said Mark Goldowitz, president of the board of directors of the Public Participation Project. “Those federally adopted procedures would only be applicable in federal court. It essentially would allow people to invoke protections against SLAPPs regardless if the state they are sued in has anti-SLAPP legislation.”

The Public Participation Project works to protect citizens from SLAPP suits and is one of the groups pushing for a federal anti-SLAPP law.

Goldowitz said there are two fairly recent SLAPP suits filed in D.C. that demonstrate the need for a federal anti-SLAPP law.

The first is a $2 million libel and defamation lawsuit against Washington City Paper that was brought by Washington Redskins owner Dan Snyder.

Snyder filed the lawsuit in February 2011, three months after City Paper published a critical piece about Snyder’s actions since he acquired the team in 1999.

According to Goldowitz, Snyder originally filed the suit in New York, which has very weak protection against SLAPP suits. After City Paper pointed out there was no basis for the suit to be filed in New York, Snyder dropped the case in New York and re-filed it in Washington, D.C.

City Paper attorneys filed a motion to have the case thrown out in June 2011, citing the D.C. Anti-SLAPP Act. The motion froze Snyder’s lawsuit in discovery until the judge could rule on the matter.

Snyder dropped the suit last September, days after The Washington Post ran an editorial that called Snyder’s battle a “losing argument” and pointed out that anti-SLAPP laws are intended to prevent this type of costly legal action.

Goldowitz said the second case is a July 2011 defamation suit brought against MSNBC host Rachel Maddow.

Preacher and Christian rocker Bradlee Dean sued Maddow and NBCUniversal for defamation, claiming she twisted his words when airing a segment of his radio show.

Dean originally filed his complaint in D.C. Superior Court where Maddow filed a motion to dismiss, arguing the suit was an attempt to stifle her free speech. Dean then voluntarily dismissed the case and filed a virtually identical complaint in federal court where the D.C. Anti-SLAPP Act does not necessarily apply.

In June, the D.C. judge ordered Dean to pay Maddow’s attorneys fees.

Goldowitz said these cases show the strength of the D.C. Anti-SLAPP Act and highlight the fact that not all states have that kind of protection. Without federal protection, he said, people can work the system to evade existing state protections.

“There are major loop holes in our nation’s system in protecting against SLAPPs and only federal anti-SLAPP legislation could plug those loop holes,” Goldowitz said. “People manufacture reasons to file in weak jurisdictions. The only way to stop that would be to have federal law.”

Golodwitz said strong opposition from trial lawyers has surfaced this year, which has slowed down the introduction of a bipartisan bill.

Opposing federal legislation

The executive director of the Center for Justice & Democracy at New York Law School, Joanne Doroshow, said the organization is most concerned about the broad scope of the law, the precedent it would set and the fact that it could be abused.

“Lawyers who normally protect consumers are opposed to the law because they are concerned about specifics of this law and how it is written and the precedent it would set as far as tort reform,” she said. “These kinds of laws need to be written with real laser precision or they could be flipped to be used against people.”

Doroshow said the consumer rights group, which works to educate the public about civil courts, acknowledges that “SLAPP suits are a bad thing,” but it is more comfortable with state laws. She noted that the group has seen one proposal for a federal law.

“The law is not written in any way to protect from the over broad use of it,” she said. “The federal law, written in the way that it’s written, is a very dangerous thing to do.”

Jennie Rasmussen with the American Association for Justice, a coalition of legal professionals and students, echoed Doroshow’s concern about the unintended consequences of a federal anti-SLAPP law.

“We support the goal of preventing SLAPP lawsuits, but adverse consequences must be avoided,” she said. “It is essential that legislative proposals are not susceptible to abuse by corporate interests seeking to deny whistleblower, civil rights, antitrust, and securities plaintiffs access to the courts.”

Strengthening state SLAPP statutes

Advocates for protection against SLAPP suits are working to improve speech protective laws on a state level as well.

Lieberman said some state statutes are stronger than others, and “Maryland has one of the least protective anti-SLAPP statutes in the country.”

A bill that would have significantly reformed Maryland’s statute was defeated in the state Senate in ­­­­­March by a 25-21 vote.

Under Maryland law, a defendant seeking to have a lawsuit dismissed as a SLAPP is required to show that the plaintiff brought the lawsuit in “bad faith,” meaning that the plaintiff knew that the lawsuit was without merit and brought it for an improper purpose, such as intimidation. However, proof of a person’s intent is difficult to establish and often requires lengthy, costly discovery proceedings that anti-SLAPP laws are designed to eliminate.

The failed bill, which was introduced by Senate Judicial Proceedings Committee Chair Brian Frosh, would have removed the “bad faith” requirement. It would have also created clear procedural rules for how to dispose of SLAPPs , required that discovery be stayed while the court deliberated whether to dismiss the case as a SLAPP suit, and clearly defined what kind of conduct is protected by the law, among other revision.

Lieberman, who testified in favor of the bill at a February hearing, said the opponents to reforming Maryland’s anti-SLAPP statute argued that it is merely a tool used by publications.

 “It’s important to emphasize that [these statutes] are not just for journalists,” he said. “The primary purpose is to promote public participation, and for citizens to not be concerned about speaking out. The primary beneficiaries are all citizens.”

Lucy Dalglish, the former executive director of the Reporters Committee, testified in favor of the bill as well. 

The portion of Missouri’s anti-SLAPP statute that limited its application to “any action seeking money damages” has been struck. The change will take effect Aug. 28.

“There was some minor tinkering with it,” said attorney Jean Maneke, who represents the Missouri Press Association. “It obviously broadens what kind of lawsuits can be brought under that. When you take out restrictions you broaden the capability of using it.”

The former Missouri statute had applied to “[a]ny action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state.”

Missouri’s intermediate appellate court previously held that the underlying claim must be for money damages and not declaratory or injunctive relief, which seek, respectively, determinations from a court about a particular legal issue or court orders to bar certain acts.

Maneke said the Missouri statute has not proven to be very effective.

“I would like to see some changes made to it,” she said. “It is not focused as well as other states’ as far as accomplishing what needs to be accomplished.”