May 19 2015

Federal Anti-SLAPP Statute Proposed

Americans cherish our free speech, enshrined in the very first amendment to the Constitution. SLAPP suits (strategic lawsuit against public participation) are a serious threat to that freedom of speech. We desperately need libel reform in the form of effective anti-SLAPP laws.

What I learned when I became the target of a SLAPP suit (that is still ongoing) is that anyone with money can take away your free speech at will. It works like this: if you express an opinion publicly that someone else doesn’t like because it is critical of them, their beliefs, their business, etc. then they can hire a lawyer and send you a cease and desist letter. You are now faced with a dilemma – take down your blog, article, podcast, video, or whatever and allow your free speech to be suppressed, or potentially face tens and perhaps hundreds of thousands of dollars in legal fees.

Except for those few states with effective anti-SLAPP laws (California, Washington, Oregon, Nevada, Texas and the District of Columbia – Florida just passed one which has not yet gone into effect), if you refuse to remove your free speech and you get sued, then expect to spend large sums of money and years of your life defending your rights. Here’s the thing – even if the case against you has zero merit and no chance of winning in the end, the lawsuit is a financial game of chicken. There is no way to shut the case down early. There is no bar for meritless cases.

The net effect of this is that if someone has money they can shut down your free speech at will. This, of course, has a chilling effect on free speech that can go way beyond the one instance of speech being targeted.

This is an important issue for all Americans. It is especially important for media companies and anyone whose business or activism requires speech. This includes the skeptical movement – we are basically involved in critical analysis of claims and practices. People don’t like critical analysis when they find themselves on the negative side.

Of course, they are free to answer the criticism, to level criticisms of their own, to make their case, present their evidence, and let open discourse sort things out. This is the public marketplace of ideas, and the framers of the Constitution knew how important it was. Some people, however, would rather just sue you into silence.

Here is another recent example that just came to my attention – four researchers, including Harvard Professor Pieter A. Cohen, were just sued by Hi-Tech Pharmaceuticals, Inc, for an article they published in the journal Drug Testing and Analysis: An amphetamine isomer whose efficacy and safety in humans has never been studied, β-methylphenylethylamine (BMPEA), is found in multiple dietary supplements. In the article they concluded:

Consumers of Acacia rigidula supplements may be exposed to pharmacological dosages of an amphetamine isomer that lacks evidence of safety in humans. The FDA should immediately warn consumers about BMPEA and take aggressive enforcement action to eliminate BMPEA in dietary supplements.

The company is suing researchers for publishing a scholarly article in a journal in which they warn that supplements may contain significant doses of a stimulant drug. Think about the implications of this case – the multi-billion dollar supplement industry can sue any critics into silence (even researchers publishing in the scientific literature) with harassing SLAPP suits.

Another recent case is Stephanie Guttormson, the Operations Director for the Richard Dawkins Foundation, who published a video criticizing a faith healer, Adam Miller, for presenting himself as a “medical professional.” Miller’s response was to sue Guttormson, who must now defend herself at great expense.

There is something very specific that we can do to fix this situation. Right now the libel laws in most states and at the federal level are broken. They allow for meritless lawsuits that effectively chill public participation in the marketplace of ideas. The fix is effective anti-SLAPP statutes. They can change the process so meritless cases are stopped early on, before ruinous expense is incurred. Effective anti-SLAPP laws may require the plaintiff to demonstrate that they are likely to win on the merits before they can force the defendant to spend money defending themselves. They can require the plaintiff to demonstrate merit prior to discovery. They can allow the defendant to have instant appeal, without having to wait until the end of the trial. They can also allow for the defendant to ask the judge to have the plaintiff pay their legal fees if the case is without merit.

Keep in mind – these statutes will not prevent or hamper legitimate libel lawsuits. If the case has demonstrable merit, meaning that the plaintiff was genuinely the victim of libel or slander, then they can still sue for damages and have the defamatory speech removed.

What anti-SLAPP laws do is make the system work like it is supposed to. Libel laws in the US are good in that the plaintiff has the burden of proof, and the defendant is innocent until proven guilty. However, in jurisdictions without effective anti-SLAPP laws the law doesn’t actually work that way – you are not innocent until proven guilty if you are forced to spend two hundred thousand dollars, with no chance of recuperation, just to defend your free speech.

There are efforts to pass effective anti-SLAPP laws in every state and at the federal level. The Public Participation Project is one such effort.  I and the SGU are working with my attorney, Marc Randazza, to help this effort. We have a model anti-SLAPP statute we can share, and we have begun efforts to promote anti-SLAPP laws in the remaining states. We need people in every state, especially those with connections to legislators, to help us get anti-SLAPP laws sponsored.

One very interesting update is that (as reported by the PPP):

On May 13, 2015, bi-partisan co-sponsors in the House introduced the SPEAK FREE Act of 2015, a law designed to protect Americans from meritless lawsuits that target their First Amendment rights. Representatives Blake Farenthold (R-TX) and Anna Eshoo (D-CA) introduced the bill in a bi-partisan effort aimed at supporting the rights of all Americans affected by meritless SLAPP suits.

So, here is something else you can do. Write to your congressperson and senator and tell them you support this very important bill. Now is the time to put the pressure on. Let them know we are paying attention and we demand our free speech.

The bill is not perfect. Here is a thorough analysis by an expert. It is definitely a good bill that should be passed, even as is. It will get the job done.

There is one interesting aspect of the bill, however, that may make it difficult to pass and might be difficult to enforce. The statue would allow any defendant in a SLAPP case sued in state court to remove the case to federal court if they want to apply this federal anti-SLAPP law. That would effectively federalize all state SLAPP cases. While this would be good for defendants (at least initially) it might also overwhelm the federal courts, and dilute the advantage of being in federal court.

If the statute, however, succeeds in providing a disincentive to filing a weak or meritless libel case, then this may not result in the federal courts being overwhelmed. That would be the best case scenario – if meritless SLAPP cases never occurred because the law prevents them from harassing people out of their free speech, and puts the financial risk on the plaintiff.

Conclusion

We urgently need anti-SLAPP laws in the US, at the federal level and in every state. This should be one of the top priorities of the skeptical movement, as our very existence is threatened by frivolous SLAPP suits.

You know what to do. Do it.

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