SLAPP Happy America Hurts Free Speech

Websites that rely on user-generated content such as Yelp! and Facebook have become increasingly popular. This rise in popularity has also brought along with it businesses which are increasingly suing individuals who exercise their First Amendment rights by posting messages on review sites, internet financial message boards, or in online chat rooms. Such suits frequently take the form of libel, slander, defamation, malicious prosecution, and/or abuse of process claims. While some of these lawsuits may have merit, others are merely retaliatory SLAPPs (Strategic Lawsuits Against Public Participation) — attempts by the plaintiffs to silence their critics and intimidate other internet users to keep their criticisms to themselves. If we truly value our First Amendment rights and want to encourage critical and open dialogue about important issues, then what is desperately needed is federal legislation that would protect individuals’ rights to speak freely without fear of retaliation.

SLAPPs are effective because even a meritless lawsuit can take years and many thousands of dollars to defend. To end or prevent a SLAPP, those who speak out on issues of public interest frequently agree to muzzle themselves, apologize, or “correct” statements.

For example, after a horrible experience with a dentist, Jennifer Batoon wrote a review on Yelp! so that other patients could avoid what she went through. Unfortunately, the dentist filed a SLAPP against Batoon and claimed her review had caused her to suffer economic losses. “I was terrified at the thought of being punished financially for simply posting my opinion online,” said Batoon. Luckily for Batoon, California has a strong anti-SLAPP law and she was successful in getting her SLAPP dismissed early on with the help of the California Anti-SLAPP Project.

Not so lucky was Justin Kurtz, a college student who was the target of a $750,000 SLAPP after he started a Facebook page criticizing the business practices of a towing company in Kalamazoo, Michigan. Unlike California, Michigan (along with almost half of the states) does not have any laws that protect against SLAPPs. Kurtz’s suit dragged on for more than eight months before it was eventually settled. Kurtz’s Facebook page had over 14,000 supporters and his case was the subject of a front-page article in the New York Times.

This is why organizations like the Public Participation Project are working to enact federal anti-SLAPP legislation. If federal anti-SLAPP legislation had been in place, Kurtz could have been protected against this SLAPP by bringing an anti-SLAPP motion to dismiss the suit very early on in the case.

Numerous events over the past few years highlight the need for more communication about important issues. A more open, searching dialogue about the mortgage industry, for example, is something that we should have welcomed. Financial health, public safety, environmental well-being, national security, and government accountability all demand an active, engaged citizenry. Technology now makes it possible for everyone to don the hat of journalist, editor, town crier or anonymous pamphleteer. The proposed federal anti-SLAPP legislation is particularly timely. It protects and encourages critical open dialogue, whether that speech takes place in the town square, on a cable news network, or a blog or online chat room. 

You can visit http://www.anti-slapp.org to learn more about SLAPPs and to get involved with the Public Participation Project’s efforts.  Here’s to hoping federal anti-SLAPP legislation passes.

Photo Credit: gruntzooki

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Evan Mascagni

Director & Producer, Toxic Profits (www.toxicprofitsfilm.com). Partner, Zero Bound (www.zerobound.com). Attorney, California Anti-SLAPP Project (www.casp.net). Legislative Assistant, Public Participation Project (www.anti-SLAPP.org).

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