March 03, 2010
Why I Support HR 4364, the Proposed Federal Anti-SLAPP Bill
By Eric Goldman
In mid-December, in a move that got a little lost in the holiday shuffle, Rep. Steve Cohen (D-TN) introduced HR 4364, the “Citizen Participation Act of 2009,” proposing a federal anti-SLAPP law. This blog post explains why I enthusiastically support this bill as way to help preserve the Internet's vibrancy as an information resource.
What is a "SLAPP"?
SLAPP stands for "Strategic Lawsuit Against Public Participation." The term was coined about three decades ago by two Denver University professors, George Pring and Penelope Canan. Pring and Canan recognized that lawsuits were discouraging people from participating in vital government processes. Thus, they advocated for a statute that would curb these anti-democratic lawsuits.
How Do Anti-SLAPP Laws Work?
In the past quarter-century, more than half of the states have implemented anti-SLAPP protection. These laws vary in several key respects, but they generally have two features. First, they provide an expedited procedure for defendants to end SLAPPs early. Effectively, defendants can turn the tables on the plaintiffs, file an anti-SLAPP motion to strike the litigation, and thereby ask the court to end the lawsuit much more quickly than under traditional rules. Second, anti-SLAPP laws allow successful defendants to be awarded their legal defense costs.
Thus, anti-SLAPP laws have a number of benefits: they get meritless cases off court dockets early, they force plaintiffs to think carefully about their lawsuits’ merits, and they make defendants financially whole for improper lawsuits. The laws protect online and offline speech equally.
The Benefits of a Federal Anti-SLAPP Law
While a majority of states already have anti-SLAPP laws, a federal anti-SLAPP law would provide a baseline level of protection in those states plus provide new protection in the 20+ states that do not have an anti-SLAPP law. For more on this, see this blog post.
Why I Support the Proposed Legislation
Originally, SLAPPs were conceived as lawsuits suppressing citizens' rights to monitor government functions. Over time, we've realized that this construction is too narrow. Although we still need to protect government watchdogs, we also need to guard against plaintiffs who use litigation to remove socially valuable content from our information ecosystem.
Personally, I am especially interested in the flow of information about goods and services in our marketplace, such as consumer product reviews. All too often, vendors use actual or threatened litigation to take down content that criticizes their offerings. The proposed federal anti-SLAPP law applies to those lawsuits. Thus, if enacted, the federal anti-SLAPP law will help consumers share their true feeling about marketplace offerings with less fear of meritless lawsuits from vendors who would rather fight in court than compete.
BoingBoing’s recent resolution of a lawsuit brought by MagicJack nicely illustrates the virtues of anti-SLAPP laws. BoingBoing blogged some criticisms of MagicJack’s offerings, and MagicJack unwisely responded to that post with a lawsuit. Fortunately for BoingBoing, MagicJack sued it in California, which has a robust anti-SLAPP law. As a result, BoingBoing was able to end the lawsuit early (BoingBoing won its anti-SLAPP motion less than 3 months from complaint filing) and get the court to order MagicJack to pay its attorneys’ fees of over $50k. This story would have ended less happily for BoingBoing if the exact same lawsuit had been brought in a state without an anti-SLAPP law (or with narrower anti-SLAPP protection). In those states, even if BoingBoing had defeated the lawsuit, it would have taken much longer, and BoingBoing would have borne its $50k+ litigation costs. The federal anti-SLAPP law will ensure that content publishers throughout the country will enjoy the same protection that BoingBoing got.
For other examples of successful anti-SLAPP motions that I’ve covered on this blog, see:
* Griping Blogger Gets Fair Use and Anti-SLAPP Win--Sedgwick v. Delsman
* Gardner v. Martino (9th Cir. April 24, 2009)
* McVey v. Day, 2008 WL 5395214 (Cal. App. Ct. Dec. 23, 2008)
* Stress-Relieving Company Gets Anti-SLAPPed Per 230
* Vanginderen v. Cornell (S.D. Cal. June 3, 2008)
* Optima Funding, Inc. v. Strang, 2007 WL 1430699 (Cal. Ct. App. May 16, 2007)
* Blogger Protected by Anti-SLAPP Statute--GTX v. Left
* KinderStart v. Google Dismissed--With Sanctions Against KinderStart's Counsel (the anti-SLAPP motion was denied, but it should have been granted)
* Google Wins Lawsuit Over Search Results--Maughan v. Google
Why Federal Anti-SLAPP Legislation Isn't Enough
Although I strongly support the federal anti-SLAPP legislation, it’s just a start. Only a small fraction of disputes over consumer product reviews lead to court (which then triggers anti-SLAPP coverage), so anti-SLAPP protection--though valuable in litigated cases--won't help in the vast majority of disputes. Thus, I would like to see legislation that creates a cause of action when content publishers a receive bogus cease-and-desist/nastygram takedown demand. Those illegitimate demands intimidate many recipients who fear a lawsuit, even if they would win an anti-SLAPP motion. Accordingly, using meritless threats, vendors can excise critical content from the Internet. 17 USC 512(f) provides a limited counterbalance against bogus copyright takedown notices; it could provide a useful starting point for conceptualizing a broader anti-bogus-takedown law.
How You Can Help
While there’s no effort yet to extend 17 USC 512(f) protection beyond copyright law, we do have a federal anti-SLAPP bill pending in Congress that needs your support. Learn more about this important effort from The Public Participation Project. With so many issues percolating in Congress, it would be easy for the federal anti-SLAPP bill to get overlooked. As a result, the bill will require significant grassroots support to climb up the legislative priority list. If you are interested in being actively involved in the effort, contact me or go here.
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