Federal Anti-SLAPP Legislation Would Equalize State Legal Landscape, Supporters Say
Supporters and opponents of the Securing Participation, Engagement and Knowledge Freedom by Reducing Egregious Efforts (Speak Free) Act (HR-2304) speaking at a Congressional Internet Caucus Advisory Committee event Friday agreed more action is needed to curb strategic lawsuits against public participation (SLAPPs) being used against online reviewers, but disagreed whether HR-2304 was too broad to be an effective deterrent. HR-2304, introduced in May by House Communications Subcommittee ranking member Anna Eshoo, D-Calif., and Rep. Blake Farenthold, R-Texas (see 1505140041), would introduce a national anti-SLAPP statute similar in scope to those in effect in California and Texas. The bill would allow defendants in a SLAPP lawsuit to file for a special motion to dismiss the lawsuit if the defendant provided an oral or written statement or other expression in connection with an official proceeding.
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Yelp, one of HR-2304’s strongest backers, believes a federal anti-SLAPP law is necessary to cover SLAPP defendants in the 22 states where anti-SLAPP laws have been struck down by state courts or have never existed, said Federal Public Policy Head Laurent Crenshaw. HR-2304 also would bridge the gap between the strong California and Texas anti-SLAPP laws and weaker laws in states like Maryland and New York, Crenshaw said. The disparity among states’ anti-SLAPP statutes allows potential SLAPP plaintiffs to “forum shop” for states with weakened or nonexistent anti-SLAPP laws, he said.
The lack of consistent strength in state anti-SLAPP laws shows there’s no single definition of what constitutes a SLAPP lawsuit, and HR-2304 would exacerbate that point by instituting an overly broad SLAPP definition that would draw in lawsuits brought by whistleblowers and other “worthy” plaintiffs, said American Association for Justice Senior Policy Counsel Jennie Rasmussen. Even California’s strong anti-SLAPP statute requires an eligible lawsuit to involve an expression made “in furtherance of” an individual’s freedom of speech, but such language is “notably absent” from HR-2304, Rasmussen said. She said she's also concerned that HR-2304’s provision allowing for SLAPP lawsuits to be moved from state courts to a federal court would challenge states’ rights. Such a rule might be necessary if there’s a question about a lawsuit’s jurisdiction, but it’s different when that rule is used to “tell states ‘we’re taking these cases out of your state courts and putting them in federal court because we don’t trust your judgment,” Rasmussen said.
Yelp and other supporters believe HR-2304 is already “narrowly tailored” to deal specifically with lawsuits against online reviewers, Crenshaw said, saying the bill contains some scope limitations. HR-2304’s provision allowing for SLAPP lawsuits to be moved to a federal court isn’t a requirement but rather provides an option to move the case, he said. The bill’s provision allowing a special motion to dismiss a SLAPP motion also doesn’t automatically end the case, it just raises the standard that a plaintiff has to prove, said Fletcher Heald lawyer Kevin Goldberg, who represents the American Society of News Editors and others that have been traditional SLAPP lawsuit defendants. SLAPP lawsuit plaintiffs “still get their bite at the apple,” Goldberg said.
HR-2304 is “a very broad bill, there’s no doubt it,” but that’s necessary to deal with the scope of SLAPP lawsuit abuse, Goldberg said. HR-2304’s breadth could also exacerbate abuses of states’ anti-SLAPP laws, Rasmussen said. She said the Church of Scientology used Texas’ anti-SLAPP law to prolong Monique Rathbun’s harassment lawsuit against the church. “You shouldn’t strengthen the constitutional rights of some by violating the constitutional rights of others,” Rasmussen said.