Why we need a free speech law to stop Trump-style legal threats

In his book “TrumpNation,” reporter Timothy O’Brien estimated that real estate mogul and now-presumptive GOP nominee Donald Trump was vastly overstating his net worth. In response, Trump sued O’Brien for libel and sought $5 billion in damages. While the courts ultimately dismissed the case for lacking merit, Trump said that he knew the lawsuit would fail but sued anyway. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” Trump is not alone in using lawsuits, or the threat of lawsuits, to silence critics. Indeed, this has become such a problem in the United States that it is time for Congress to intervene, so that the court system does not merely become a tool to silence free speech among those who would speak out against powerful individuals and businesses.

{mosads}This type of legal maneuver — known as a strategic lawsuit against public participation (SLAPP) — often occurs when defendants have no legal mechanism to ensure that frivolous lawsuits are swiftly dismissed. Faced with time and the attorneys’ fees involved in defending against a SLAPP, the easier path for a defendant is often to retract his or her statement, even if it is true. Therefore, SLAPPs undermine free speech and harm the public interest, giving those with more time and resources an upper hand against public criticism. By creating a federal law, policymakers could ensure an equal footing for defendants and plaintiffs in the court system, so deep pockets do not create an unleveled playing field.

SLAPPs come in many forms. In an infamous case, Dan Snyder, the owner of the Washington football team, sued the Washington City Paper over an unflattering article in an attempt to get it taken down. Snyder’s lawyer wrote a letter to the paper saying, “We presume that defending such litigation would not be a rational strategy for [a company] such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.”

SLAPPs are not only directed at journalists. As the internet has permeated all aspects of our economy, users have created millions of new posts on social media and e-commerce websites to share their opinions and feedback. Here, too, SLAPPs threaten legitimate speech. For example, a legal threat from a restaurant or hotel would discourage its customers from candidly giving online feedback on a platform like Yelp or TripAdvisor, and that would mean that consumers would lack valuable information they need to make better marketplace decisions.

To prevent misuse of the court system, several states have passed anti-SLAPP laws. Most of these laws give defendants the option to file a special motion to dismiss a SLAPP claim and recover costs and reasonable attorneys’ fees if the SLAPP is proven to be frivolous. When these laws are in place, a defendant will file a motion to dismiss the lawsuit, and a judge can determine if the case is meritless and only intended to silence critics. If the judge determines the lawsuit is bogus, they can dismiss it then and there. This legal mechanism allows defendants to head off spurious lawsuits and recover fees, while not diminishing the ability of a plaintiff to go to court for legitimate purposes.

However, state anti-SLAPP laws often vary in their effectiveness and the protections they offer, and many states do not offer these protections at all. Only 28 states and the District of Columbia have anti-SLAPP laws on the books. Due to this patchwork of laws, plaintiffs often engage in forum shopping, where they search for courts in states that do not have anti-SLAPP laws and are therefore more favorable to frivolous lawsuits.

Reps. Blake Farenthold (R-Texas) and Anna Eshoo (D-Calif.) have introduced the Speak Free Act, which is a bipartisan measure to offer a baseline federal level of protection against SLAPPs. The Speak Free Act not only allows federal courts to dismiss bogus claims unless a plaintiff can prove the suit would succeed on its merits, but it offers important fee-shifting provisions to protect defendants against having to pay lofty legal fees. This law would add needed protections for speech.

Congress should move quickly to take up this bill to ensure that everyone — whether a reporter at a local newspaper or an online reviewer of a retailer or professional service provider — can have speech protected from spurious lawsuits.

McQuinn is research assistant at the Information Technology and Innovation Foundation, a think tank focusing on the intersection of technological innovation and public policy. Follow him on Twitter @AlanMcQuinn.