Journalists, whistleblowers, and activists must be protected from SLAPPs

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Deputy Director of Advocacy

The environmental group Greenpeace recently defeated a SLAPP seeking $100 million in damages.

Alex Carvalho via flickr, CC BY-SA 2.0

A long-running legal saga that could have left Greenpeace on the hook for $100 million in damages has instead come to an end with a victory for the environmental group — and free expression. A court recently dismissed the lawsuit brought by Resolute Products, a pulp and paper company, after Greenpeace criticized its logging practices.

But while Greenpeace may have won, it still had to fight the case — and pay legal fees to defend itself — for seven long years. And because there’s no federal law against strategic lawsuits against public participation, or SLAPPs, the next case against Greenpeace, other activists, or journalists may drag on even longer.

A SLAPP is a lawsuit brought to chill the exercise of First Amendment rights, often to silence and punish the plaintiff’s critics. Many SLAPP plaintiffs are powerful or wealthy. Local news outlets, individual journalists, and even those who write letters to the editor have all faced SLAPPs.

The goal of a SLAPP is to deter the target of the lawsuit and others from speaking out in the future. SLAPP plaintiffs don’t even need to win to achieve this goal; they simply wield the legal system as a weapon against their critics, making them pay a lot of money to defend themselves and suffer the inconvenience of a court case.

Thankfully, in a majority of states, victims of SLAPPs can fight back by using anti-SLAPP laws. These laws require courts to throw out meritless lawsuits arising from another’s exercise of First Amendment rights early — before a defendant’s legal bills can mount. Many of the laws also make the plaintiff pay the other side’s attorneys’ fees if the case is dismissed, taking the bite out of the high cost of a SLAPP.

Both red and blue states have recognized how important anti-SLAPP laws are to protecting free expression. This spring, Utah strengthened its anti-SLAPP law by adopting the Uniform Public Expression Protection Act, a model bill that’s also been passed in several other states and hopefully will be adopted in others that either don’t have SLAPP laws or have weak ones. Texas and Oklahoma both recently rejected changes that would have weakened their anti-SLAPP laws. And New Jersey is now considering passing its first anti-SLAPP law.

However, despite progress in the states and the introduction of the first anti-SLAPP bill in Congress more than a decade ago, there’s still no federal anti-SLAPP law. This leaves reporters and others exposed to SLAPPs in federal courts, especially since some federal courts have held that certain state anti-SLAPP laws don’t apply in those courts.

The inconsistency in whether and where state anti-SLAPP laws apply at the federal level means SLAPP plaintiffs can shop around, bringing lawsuits strategically in courts where they can inflict maximum damage. For example, under the Georgia anti-SLAPP law, a SLAPP brought in state court could be dismissed early and a successful defendant awarded their attorneys’ fees. But because the Georgia anti-SLAPP law doesn’t apply in federal court, a plaintiff who brought the very same lawsuit in federal court could make it drag on and on — and make the defendants pay high costs to defend themselves, even if they ultimately win.

The solution to this problem is a federal anti-SLAPP law, like the one that Rep. Jamie Raskin introduced last Congress. Raskin’s SLAPP Protection Act would allow a defendant to file a motion to have meritless First Amendment-based lawsuits dismissed early in the proceedings, pause the case while the motion to dismiss is pending, and require courts to rule on such motions quickly. In many cases, it would also allow the defendant to recover their attorneys’ fees.

A federal anti-SLAPP law would reduce the chilling effect that SLAPPs can have on reporters and others who want to report or speak up about environmental disasters, corporate corruption, or official wrongdoing. It would protect all Americans, including journalists, who face meritless lawsuits in federal court based on the exercise of their First Amendment rights. For too long, we’ve allowed the comfortable to abuse the law to afflict the press. It’s beyond time for Congress to pass a federal anti-SLAPP law so that the press can instead be truly free to afflict the comfortable.

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