As Congress Weighs Anti-SLAPP Legislation, Stories Abound on Chilled Free Speech

Historically, free speech, libel and First Amendment laws have been about the institutional press, but now such laws apply to all people, said Mike Godwin, general counsel for think tank R Street Institute during the Thursday-evening event. "That's a really important generational shift that's really just happened in the last few decades." Some companies and individuals use strategic lawsuits against public participation -- popularly known as SLAPPs -- to chill free speech and deter people from even expressing their opinion, the panelists said.

“Even if we have strong constitutional protections for individual speakers, this threat of getting dragged into court and having to defend your right -- even if you end up being completely successful in the court case and getting the challenge to your speech thrown out because actually what you said was protected -- just the mere threat of having that lawsuit can chill people from expressing opinions, from sharing ideas, from engaging in their fundamental right to express themselves," said Emma Llansó, free speech expert at the Center for Democracy & Technology. "It is stressful and time consuming and can be very, very expensive to defend your right in court.”

Wednesday, the House Judiciary's Constitution and Civil Justice Subcommittee will consider HR-2304, the Speak Free Act, which is a bipartisan bill introduced last year that seeks to end what sponsors have described as "wasteful and intimidating" lawsuits (see 1606160028). Twenty-eight states and the District of Columbia have anti-SLAPP statutes, said the Public Participation Project, a coalition of businesses and individuals that support a national law. The Koch panelists said states such as California, Florida and Texas have good anti-SLAPP statutes, but the efficacy of state laws vary.

University of San Diego law professor Shaun Martin recounted one case in California, which has one of the most expansive anti-SLAPP statutes, about a woman who posted several negative comments on Yelp and other websites about the flowers purchased for her wedding. Among other opinions, Martin said the woman made a "factual statement that the flowers were wilted." The florist disagreed, took the woman to court, went through a trial and won a judgment of several thousand dollars because the florist was able to prove the statement was defamatory, he said.

After the woman had been initially sued, Martin said "she was happy to back off the statement and take it offline but that was not a sufficient pound of flesh at that point." Martin said he became involved at the tail end of the case and got the verdict vacated but not before the woman paid her previous lawyer $55,000. "Just remember that the next time you want to say that the food you got was cold or make other statements that someone might want to take umbrage" at, Martin said.

But California law is considered a model, Martin said, because it has a procedural protection. Right after a lawsuit is filed, the defendant could file a motion to basically make the other side present a prima facie case -- present some evidence that what the defendant did was wrong and illegal, said Martin. That could help a defendant get out of a suit very quickly and very inexpensively since, in other states, a defendant may have to go through discovery, which could cost thousands of dollars, he said. Another important element of California's law is that if a defendant wins a motion, the other side is required to pay the defendant's legal fees, giving them an equal amount of leverage, he said.

That's not true in all states. Dawn Lyon, vice president-corporate affairs for jobs, recruiting and opinion website Glassdoor, said her company always defends a user's identity except in one case two years ago when it was ordered by a court to reveal the identity of a Florida woman who posted a statement online about her employer. Lyon said the woman is still fighting the case and has spent $10,000 in legal fees. While Florida has an anti-SLAPP statute, it doesn't have "fee shifting," said Lyon, saying the woman won't be able to recover her legal fees.

Anonymous free speech is "critically important" to both Glassdoor and to its users, said Lyon. While most companies embrace such transparency, she said Glassdoor received last year about 250 legal demand letters, asking the company to reveal the identity of a user who posted comments like "my boss is a jerk" or "this is a sweatshop." Lyon also said a federal law would help provide uniform protection across the U.S. because many plaintiffs are "cherry picking jurisdictions" where there are no anti-SLAPP laws.

Another emerging problematic trend, said CDT's Llansó, is that if a suit is filed in one state against a defendant who lives in another state, the defendant may not want to show up at the hearing. In such a case, the court may enter a default judgment against the defendant and then order a website operator to take down the defendant's online comment or defamatory statement. “That’s not something we’ve seen a lot of it yet, but [a] very recent case in California sort of points the direction for a lot more of that sort of thing in the future,” she said. It's concerning because it "brushes aside the idea" that a website operator wouldn't have its own free speech or First Amendment interest in curating content, she added.