Mar 12 2015

Libel Reform – In the US

After Simon Singh was sued by the British Chiropractic Association for libel, he used the opportunity to rally for libel reform in the UK. Simon won his suit, but defending his free speech was tremendously expensive. Fortunately for him, he had the resources to go the distance. Libel laws in England are especially bad, favoring the plaintiff and are ridiculously expensive – so much so that they motivate “libel tourism” in which someone sues someone else specifically in England for maximal effect.

At the time I thought I was lucky for the fact that the US has more rational libel laws. The burden of proof is heavily on the plaintiff, as it should be. In the US we take our first Amendment rights to free speech seriously.

Then, of course, I was sued, and I realized how wrong I was.

The problem with libel laws in the US is that the legal battle is more about who has money than who is right. If you want to shut down someone’s right to free speech all you have to do is sue them for defamation. There is no barrier to doing so. The defendant then has the option of either taking down their blog post, article, podcast, whatever and giving in to the demands of the person threatening to sue them, or face tens of thousands or even hundreds of thousands of dollars in legal fees to defend their free speech. What do you think most people are going to choose?

This type of lawsuit is called a strategic lawsuit against public participation, or SLAPP. These cases can be completely frivolous without any chance of winning, but winning is not the point. The goal is to make the process as expensive for the defendant as possible. It is legal thuggery, and it works. Once the suit starts there is really no way out of the suit that isn’t ruinously expensive, regardless of the merits.

Fortunately, there is a solution. Several states (California, Washington, Oregon, Nevada, Texas and the District of Columbia) have effective anti-SLAPP laws. Other states have narrow or ineffective anti-SLAPP laws, and some states have no anti-SLAPP laws. Anti-SLAPP statutes protect defendants from harassing lawsuits to suppress their free speech.

There are several potential components of such laws. They may provide legal mechanisms that give the defendant the ability to challenge the suit on its merits and get a quick judgement, before the case is horrendously expensive. They also may contain a provision to allow defendants to obtain legal fees and expenses from the person suing them if the case is judged to be frivolous.

I would also like to see a provision in which a libel case must meet a minimum standard for demonstrating merit before the suit can even begin. Before someone can force someone else to spend a dime defending their free speech, they should meet the burden of demonstrating to the court that their case is reasonable (not that they will necessarily win, but that at least they have probable cause). Many states have such protections for malpractice suits, for example, so there is precedence for this.

In my opinion, effective anti-SLAPP laws are required to protect our freedom of speech, especially now in the age of the internet where so many private citizens, without the protection of large media corporations, are expressing their freedom of speech. If, for example, you want scientists to communicate science to the public, then they need a safe space in which to do so. Many scientists are silenced by the chilling effect that the threat of lawsuits can have.

Anti-SLAPP laws do not remove the ability for someone to successfully sue for legitimate defamation. They simply protect against frivolous suits used for legal intimidation and silencing.

Inspired by the actions of Simon Singh after his lawsuit, I am going to start pushing for anti-SLAPP laws in every state of the US. I am working with Marc Randazza, who is an attorney specializing in defending free speech (and is defending me in my own case). He has a model anti-SLAPP law that is a great starting point for any proposed legislation. What we need now are volunteers in every state without a current anti-SLAPP to contact their state representatives and start pushing for such laws. We can provide consultation and Marc is willing to speak to any legislators. Contact me if you want to help, especially if you have direct lines of communication to your state representative.

Anti-SLAPP laws are pro-consumer and pro-business (businesses don’t like to get sued either), which means that states can use effective anti-SLAPP laws to compete against other states for business, especially media companies. This means that as more states pass effective anti-SLAPP laws there will be increasing pressure on the remaining states to pass anti-SLAPP laws of their own. Hopefully then the dominoes will fall.

This is a very concrete way in which we can mobilize the skeptical community to work for positive change. Let’s do it.

Note: You can find your representatives here:


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