DTCI: The need for federal anti-SLAPP legislation is great

Public participation is the hallmark of a free and open society. It is an essential element of effective government and democratic order, serving as a conduit for dissent, discussion, compromise and consensus. The protections afforded by the First Amendment play a critical role in protecting public participation and free speech. These protections allow all, including the weak, poor, and minorities, the ability to communicate their views to the world. Free speech is the pillar of free people, and it is no surprise that it was considered so important it was given first place in our Bill of Rights.

With technology like YouTube, Twitter and Facebook, citizens have been able to communicate their opinions to the world with the touch of a button. When a post or video goes “viral,” a single citizen can communicate his ideas to thousands or potentially millions of people — something impossible just a decade ago. Technology has also been a vital tool for like-minded individuals to organize so their positions can be advanced through the democratic process.

Strategic Lawsuits Against Public Participation (SLAPP) are filed to stifle free speech and dissent by targeting individuals exercising free speech. Typically SLAPPs “masquerade as ordinary lawsuits” but are intended to intimidate opponents and discourage participation in the public forum. Oftentimes the goal of a SLAPP is to chill the defendant’s speech and petition rights and to discourage others from participating in similar activities. Damage amounts claimed by SLAPP and the staggering cost of defending them frighten unsophisticated defendants into submission and chill participation by others. SLAPPs are often disguised as legitimate claims such as defamation, interference with a contractual right or prospective economic advantage, antitrusts, and invasion of privacy. Usually, filers of SLAPPs argue that their current or future commercial interests would be negatively affected by the target of a SLAPP. Forum shopping is another common feature of a SLAPP.

In response to the rise of SLAPPs, “anti-SLAPP statutes” have been enacted in a majority of states in an effort to end the abusive lawsuits. Indiana’s anti-SLAPP statute, Indiana Code 34-7-7-1, allows a party to challenge a lawsuit as a SLAPP if the suit was brought “in furtherance of (your) right of petition or free speech.” Under the Indiana anti-SLAPP statute, if a motion to dismiss is successful, the defendant is awarded attorney fees and costs.

At least 29 states have now enacted specific legislation to curb SLAPPs, but there is no federal anti-SLAPP law. Many have called for a federal uniform act that would provide a consistent and clear method for courts to process and adjudicate such claims.

Proposals for a new federal anti-SLAPP statute share these common objectives:

1. Establishment of an efficient and uniform method to adjudicate SLAPPs;

2. Striking a balance between the due process rights of plaintiffs and defendants who are defending against claims that limit free speech; and

3. Providing attorney fees and costs where appropriate.

A recent proposal also includes a special motion to strike or motion to dismiss allowing a defendant to a SLAPP to contest the claim by early adjudication with the threat of attorney fees and costs.

An important element of the proposed federal statutes is the provision for the SLAPP plaintiff to pay costs of litigation and reasonable attorney fees. SLAPPs are intended to intimidate into submission those who lack resources. Without an attorney fee provision, SLAPP defendants could not obtain representation.

Plaintiffs are shrewd and initiate their SLAPPs in states with weak anti-SLAPP statutes. Courts are often left having to determine which state’s anti-SLAPP applies or whether a state anti-SLAPP statute even applies in federal court.

Recently the U.S. Supreme Court had the opportunity to assist in solving at least some of these issues in Mebo International v. Yamanaka, D.C. 4:13-cv-03240-YGR, 9th Cir. 2015. Observing a split in the circuit courts, the issue presented to the court was whether anti-SLAPP statutes are properly applied to diversity cases. The U.S. Supreme Court declined to hear the case making the necessity for federal anti-SLAPP legislation even more critical.

HR 2304 or “The Speak Free Act” is a bipartisan effort to address this problem. The Act would apply anti-SLAPP legislation across the nation and would amend the Federal Judicial Code to allow a person against whom a lawsuit is asserted to file a special motion to dismiss. The Act requires courts to grant the special motion to dismiss if the party filing the motion makes a prima facie showing that the claim asserted against them is a SLAPP, unless the responding party demonstrates that its claim is likely to proceed on the merits.

SLAPPs are not brought to pursue justice, but to trap their victims in costly litigation and to deter them from engaging in their rights of free speech and petition. Whether it is The Speak Free Act or some other federal legislation, there appears to be a growing consensus that a federal uniform anti-SLAPP statute will eventually be enacted. As for now, litigants bullied by SLAPP suits must encourage federal courts to apply state-specific SLAPP statutes.•

Christopher Lee is a partner in the Indianapolis office of Wooden McLaughlin and serves on the board of directors of DTCI. The opinions expressed in this article are those of the author.