Stronger anti-SLAPP laws protect press freedom from frivolous but costly legal threats
President Donald Trump’s legal threats against the publisher and author of the most recent insider account of the White House may strike a nerve with journalists who are fearful of expensive legal defenses and chill valuable news reporting, but the threats could lose much of their power if states or Congress strengthened a tool that judges may use to dismiss meritless lawsuits involving speech protected under the First Amendment.
On Jan. 4, Attorney Charles Harder sent a cease-and-desist letter on behalf of President Donald Trump to author Michael Wolff and his publisher calling for the pair to halt publication of “Fire and Fury,” Wolff’s book about the Trump administration. Harder has represented a number of high-profile individuals including First Lady Melania Trump and professional wrestler Hulk Hogan in recent lawsuits against media organizations.
Legal threats like this one underscore the need for stronger legal protections against lawsuits intended to chill journalists’ reporting and other speech protected under the First Amendment. Even when legal action is clearly an attempt to silence criticism of a public figure, judges can quickly dispense with such cases only if strong laws exist to protect reporting and other speech. Currently, however, the patchwork of legal safeguards defending those exercising their First Amendment rights is often inadequate.
Libel laws exist to protect a person from defamation, meaning false statements that harm a person’s reputation. However, individuals and companies with deep pockets often threaten or actually bring lawsuits to discourage or halt speech that they don’t like about public matters. These frivolous lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPP), and are often an attempt to silence or bankrupt opponents through costly litigation.
About 30 states have anti-SLAPP laws, but they vary widely. Many states, such as California, Georgia, and Texas, have strong anti-SLAPP laws that discourage these lawsuits by requiring the person bringing the lawsuit to show that they have evidence that could result in a verdict in their favor, but several state anti-SLAPP laws are procedurally weak. And there is currently no federal anti-SLAPP law, although federal legislation introduced in 2015 is the subject of serious discussion in Congress.
The threat of lawsuits draining resources from news outlets is real. Just last year, a state attorney in Florida sued WBBH-TV for defamation after a story described findings from a U.S. Department of Justice investigation that was critical of him and left him with "hurt feelings," among other things, according to filings in the lawsuit.
Anti-SLAPP laws do not prevent courts from considering defamation lawsuits or change the legal standards that apply to those cases, but such laws do lessen the incentive to bring frivolous lawsuits.
Elected officials should never use the courts – or even the threat of a lawsuit – to silence or shape reporting and other speech, or to settle political scores, but if and when they do, strengthening anti-SLAPP laws is an important way to protect the news media, press freedoms, and the flow of information in our democracy.
For an introduction to libel, current protections for news reporting and anti-SLAPP solutions, visit rcfp.org/browse-media-law-resources.