We Need Federal Anti-SLAPP Legislation, But Sen. Kyl’s “Free Press Act of 2012? Isn’t the Answer (Yet) (Forbes Cross-Post)

By Eric Goldman

It’s a sad but all-too-common story nowadays.  A consumer posts a negative online review about a business.  Angered by the negative feedback, and fearful of the lost business, the business threatens the consumer with a lawsuit. Recognizing the overwhelming cost of defending a lawsuit (plus the risk of a financially ruinous adverse judgment), the consumer backs down and removes the review.  This unfortunate interaction, played out many times every day all across America, deprives society of truthful negative speech–among the most socially valuable, yet most imperiled, type of speech.

Anti-SLAPP Laws as a Solution

“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.”  Initially conceived as lawsuits against citizens who were legitimately petitioning the government, over the years many folks have recognized that any lawsuit seeking to suppress discussions about socially important topics could, and should, be considered SLAPPs.  For example, lawsuits against consumer reviews typically should qualify as SLAPPs because of the importance of consumer reviews to the marketplace’s invisible hand.

In response to abusive anti-speech lawsuits, nearly 30 states have enacted anti-SLAPP laws.  The laws typically provide SLAPP defendants with two main remedies: (1) a way to end the lawsuit at a very early stage, and (2) an award of the defendants’ attorneys’ fees.  While anti-SLAPP laws do not guarantee that truthful negative consumer reviews will remain online in response to legal threats, the laws make unhappy plaintiffs think twice about heading to court before trying to squelch socially valuable speech; and when abusive anti-speech lawsuits are brought, anti-SLAPP laws provide some meaningful justice for the victimized defendant.  For those reasons and others, the American Bar Association recently adopted the following resolution:

the American Bar Association encourages federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).

While the proliferation of state anti-SLAPP laws has been promising, much work remains to be done.  First, while a majority of the states have adopted anti-SLAPP laws, many states have not, leaving consumers in those states without a valuable counterweight against bogus legal threats.  Second, the states’ adoption of anti-SLAPP laws are quite inconsistent.  Some states, like California, have fairly expansive protection against SLAPPs; but other states have very narrow statutes, such as laws that only protect against anti-petitioning lawsuits.

Thus, a federal anti-SLAPP statute offers two main benefits.  First, it would immediately provide anti-SLAPP protection to the tens of millions of Americans who lack such protection today. Second, it could establish a national “floor” to strengthen anti-SLAPP protection in those states with narrow anti-SLAPP laws.

Sen. Kyl’s Proposed Free Press Act of 2012

Some members of Congress have already recognized the value of federal anti-SLAPP protection.  For example, in 2009,  Rep. Steve Cohen introduced HR 4364, the Citizen Participation Act of 2009, which attracted three co-sponsors.

Last month, Sen. Kyl introduced S. 3493, the Free Press Act of 2012, the latest proposal for federal anti-SLAPP legislation.  Read the text.  For his leadership recognizing the importance of anti-SLAPP laws, I commend Sen. Kyl.  However, I can’t support the bill in its current form.

I’m going to focus my concerns on one key aspect of the bill.  The only defendants protected by the law are “representatives of the news media,” a definition taken from the Freedom of Information Act:

any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation….

Although caselaw has read this definition broadly (see, e.g., this case), the definition has at least three key problems:

1) It’s anachronistic.  I’m not sure it ever made sense to distinguish between journalists and non-journalists, but those distinctions don’t make sense in the digital era where virtually everyone online produces content.  Continuing to embrace an old-time conception of journalism is anachronistic.

2) It’s ambiguous.  The definition is filled with murky terms (what is “news”? what is “information of potential interest to a segment of the public”? and so on).  All of that ambiguity causes litigants to spend a lot of time and money fighting each other.  Further, with so much room for interpretation, judges are likely to reach inconsistent results, further diluting the statute’s value.

3) It’s regressive.  To the extent the definition protects institutional players, such as consumer review websites and traditional media enterprises, and concomitantly may not protect individual consumers sharing their personal perspectives about the businesses they deal with, the statute is oddly regressive.  It favors defendants who are more likely to be able to afford litigation even without anti-SLAPP protection, while leaving the individuals with the least financial capacity without the extra statutory protection.  If we’re going to choose to favor one group of content producers over another (which we shouldn’t), I think this is exactly opposite of the choice we should make.

In light of the upcoming election, the Free Press Act of 2012 probably won’t make further progress this calendar year.  When Congress does revisit Sen. Kyl’s proposal, it should remove the bill’s restricted applicability to “representatives of the news media.”  That way, the statute would apply to all lawsuits based on “an oral or written statement or other expression that is on a matter of public concern or that relates to a public official or figure,” regardless of who says it.  Given the importance of this type of content, the defendants’ identity shouldn’t matter.

Either way, I hope Congress revisits anti-SLAPP legislation after the elections.  Passing a federal anti-SLAPP law would be one of the quickest and easiest ways for Congress to make a major and lasting improvement to our country.

Other coverage

* Breitbart.com: Stopping Lawsuits Meant to Silence Dissent: The Free Press Act

* EFF: New Federal Anti-SLAPP Legislation Introduced: A Good Start

[Note: I am on the board of directors for the Public Participation Project, a non-profit organization lobbying for a federal anti-SLAPP law.  However, I speak solely for myself, not for the organization or other board members.  The Public Participation Project released its own statement about the Free Press Act of 2012.]