Illinois Anti-SLAPP Law Doesn’t Apply To Law Firm Blog Posts–Bock & Hatch v. McGuireWoods
We’re revisiting the important and entirely self-referential issue of defamation liability for blogging about judicial opinions. As I’ve discussed before (this post is perhaps my most heartfelt), blogging about judicial opinions is automatically risky because at least one side has already demonstrated their litigiousness. A wide range of legal doctrines insulate blogging about legal opinions, including the First Amendment, especially the fact/opinion line; courts’ treatment of online discussions as inherently rough-and-tumble; courts’ treatment of hyperlinks as supporting citations; the fair reporting privilege; and anti-SLAPP laws. Unfortunately for us legal bloggers, these legal doctrines have exceptions and limitations that leave us potentially exposed, as illustrated by today’s case.
The defendant is McGuireWoods, one of the 30 largest law firms in the country. In 2011, one of their attorneys, Andrew Trask, blogged at the McGuireWoods-operated “Class Action Countermeasures” blog about a case in which the law firm Bock & Hatch represented the class-action plaintiffs. The 2011 post said, among other things, that “The trial court ruled that, while the firm’s actions displayed a lack of integrity, the proper remedy was discipline by the Illinois bar.” In 2013, Trask blogged a related case, saying the court “stated that in Ashford Gear, ‘one of the plaintiff’s firms, Bock & Hatch, had lied to a witness about keeping a list of possible faxes and recipients confidential.'” Bock & Hatch sued for defamation and violations of Illinois unfair competition law.
McGuireWoods defended on Illinois’ anti-SLAPP law, which protects the “rights of petition, speech, association, or to otherwise participate in government.” Unfortunately, because of the narrow coverage of this old-school anti-SLAPP law, it does not apply to this dispute:
plaintiffs’ lawsuit does not resemble a strategic lawsuit intended to chill McGuireWoods’ participation in government or to stifle its political expression. It appears that the goal of plaintiffs’ lawsuit was not to interfere with and burden McGuireWoods’ free speech and petition rights, but rather to seek injunctive relief for the personal harm to their reputation from McGuireWoods’ alleged acts.
As a result, McGuireWoods’ anti-SLAPP motion failed and the case will proceed.
Would a more modern anti-SLAPP law lead to a different outcome? I believe it would. Although McGuireWood’s posts weren’t about petitioning the government, the posts help track and report on official government proceedings. That is exactly the kind of socially beneficial speech that anti-SLAPP laws should protect. Thus, this ruling reinforces how a federal anti-SLAPP law would upgrade states like Illinois to more modern anti-SLAPP coverage.
The court doesn’t discuss whether McGuireWoods’ blog posts constitute “commercial speech,” a common exception to anti-SLAPP laws. Law firms are important and knowledgeable sources of public commentary about court proceedings and the law, but they aren’t non-profit journalists. Their posts usually help build a commercially valuable reputation and demonstrate expertise that can draw new clients or retain existing ones. Our legal system doesn’t handle the classification of such “dual-purpose” communications very well, especially when characterizing law firm blog posts under lawyer advertising rules. Depending on where this case goes, the commercial speech angle could be important.
There is an extra irony about McGuireWoods’ posts leading to a law suit. Many law firm blogs–especially Biglaw blogs–tend to be fairly straight-laced, i.e., they tend to summarize court rulings and leave it to the reader to infer the implications (in contrast, editorializing and rhetorical hyperbole are common and expected at blogs like mine). This conservative approach to blogging reflects the law firm’s concerns about criticizing judges that the firm’s lawyers might appear before or that any opinions expressed in the blog post will be cited against the law firm in future filings by litigation opponents. Ironically, McGuireWoods’ posts tried to be conservative reports of the court rulings, but they got sued anyway. Thus, I fear this ruling might be interpreted as another reason for law firms to stop blogging altogether.
Case citation: Bock & Hatch LLC v. McGuireWoods, LLP, 2017 IL App (1st) 160294-U (Ill. App. Ct. Feb 14, 2017)
* Bashing Your Litigation Opponent in an Online Message Board? Go For It!
* Law Professor Blogger Wins Anti-SLAPP Ruling, But It’s Hard To Celebrate The Win–Welch v. USD
* Legal Blog Faces Defamation Liability for Mischaracterizing Prior Legal Proceedings–Huon v. Above the Law (and see Now the Seventh Circuit Is Shitting On Section 230–Huon v. Denton)
* Tweeted Article About Law Grad’s Suit Over Stalking Investigation Isn’t Defamatory (and what a sad denouement to the plaintiff’s story)
* Want To Avoid Defaming Someone Online? Link To Your Sources
* Are the Days of Independent Legal Blogging Over?
* Another Court Finds Online Statements With Links Are Not Defamatory – Seldon v. Compass Restaurant
* Business School Professors May Be Liable for Defamatory Blog Post–ZAGG v. Catanach
* Using Links as Citations Helps Gizmodo Defeat a Defamation Claim–Redmond v. Gawker Media
Also: LA Times, Blogger beware: Postings can lead to lawsuits