Speaking Freely Against SLAPPs

Written by Rita Cant

A bill that would shield online speakers from meritless lawsuits was introduced this month in the House with bipartisan support.  The SPEAK FREE Act seeks to create legal protections for those who speak out on a controversial issue, report on potential misconduct, or post a negative comment or review online.  We hope to see the SPEAK FREE Act become law, and it is garnering strong support from other free expression advocates and online communities alike.

SLAPPs… share a common goal of intimidating certain speakers or removing certain views from public debate.

In too many states, asserting your views can mean getting slapped with a lawsuit – or an invasive subpoena for personal information – in spite of state constitutions and the guarantees of the First Amendment.  SLAPPs, or strategic lawsuits against public participation, can be meritless claims of defamation, copyright infringement, product disparagement, or any number of other alleged harms, but they share a common goal of intimidating certain speakers or removing certain views from public debate.

Anti-SLAPP laws protect these speakers – both offline and online – by allowing judges to quickly dismiss meritless complaints and subpoenas.  By filing an anti-SLAPP motion, a speaker can avoid the burden of defending her comments in court by requiring the plaintiff to show that the claim has merit and that the lawsuit is likely to succeed.  As a federal law, the SPEAK FREE Act would create a national baseline of protection of speakers whose states have not adopted strong anti-SLAPP safeguards.  It would also create disincentives to file frivolous SLAPP claims by shifting some of the speaker’s legal costs to the plaintiff.

Another feature of strong anti-SLAPP laws is the crucial safeguards for speakers’ privacy.  Misuse of the courts’ truth-seeking processes has the power to expose and humiliate those who voice dissent, and sends a warning to others who value their privacy that they had better watch their words.  The SPEAK FREE Act seeks to balance plaintiffs’ discovery requirements against speakers’ privacy interests, and affirms the right to comment anonymously or under a pseudonym for anyone whose name is subpoenaed in connection with a SLAPP.

Together with a related bill banning non-disparagement clauses designed to contract around consumers’ right to offer business reviews, the SPEAK FREE Act could encourage those with critical views to participate in public debate.  Like any early dismissal mechanism, anti-SLAPP laws may also be abused – and we encourage lawmakers to consider states’ experiences in fine-tuning anti-SLAPP laws and monitoring their impact in the courts.  During debate, we hope Congress will address some of these issues and work quickly to advance the SPEAK FREE Act. Online speakers deserve this fundamental protection from baseless lawsuits.

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