Ending this threat requires cooperation across the political spectrum and across different sectors. Free speech is not a luxury to be controlled by the powerful few. By bullying and intimidating those who speak out, the powerful are putting their own interests above the broader interests of our democracy. We won’t allow legal bullies to make “Strategic Lawsuits Against Public Participation” (SLAPPs) the new normal. To the contrary, their use of these shameless tactics strengthens our resolve to protect our rights to free speech and peaceful protest.
Ending SLAPP Begins with Responsible Business
As most business leaders are aware, the best way to respond to criticism by civil society advocates, journalists, and the public is to engage in constructive dialogue. Participating in good faith in multi-stakeholder dialogues can result in creative, unexpected solutions, as well as a stronger social license to operate.
Spread the Word: SLAPPs are a Risky Business Move
Bringing a SLAPP is a risky tactic for a company to pursue. The costs are potentially enormous. In addition to the costs of unnecessary litigation, anti-free speech behavior can cause a strong public blowback against a company’s brand and reputation. It can attract the attention of lawmakers and regulators. It can scare away customers.
Even Chevron, whose SLAPP many still hold up as being successful, ended up with a $2 billion bill. (The New Yorker reported that the case could have been settled for $140 million in 2011). In May 2018, three shareholder resolutions challenged Chevron’s CEO John Watson for “materially mishandling” the situation. Watson later announced that he would be stepping down.
In contrast, SLAPPs can backfire, bringing more support for the victim’s cause. After facing a SLAPP from Shiva Ayyadurai, the blog TechDirt ended up raking in a huge amount of money in support of its cause (via the isupportjournalism.com web portal it created). Mike Masnick, TechDirt’s founder who was also a co-defendant in the lawsuit, actually coined the term “Streisand effect.”
SLAPPs can also obstruct all of the economic benefits that a company can obtain from information sharing. If customers or the public are afraid to provide critical feedback, then the company will lose data gathering opportunities that it can use to improve its products and services. This can make a company less resilient and responsive to changes in the market and consumer demand.
Bipartisan Support Exists for Anti-SLAPP Legislation
SLAPPs will exist as long as corporations and powerful individuals are willing to abuse the court system to intimidate and silence their critics. But anti-SLAPP legislation can help to reduce the threat. Anti-SLAPP legislation makes it easier for courts to dismiss these cases quickly to minimize the burden on those who have been targeted. Legislation can also impose sanctions, recovery of attorney fees, and other costs on the SLAPP bully. This can create a strong disincentive against the use of SLAPPs.
Bipartisan support exists for anti-SLAPP legislation. In fact, some of the strongest anti-SLAPP laws on the books are in California and Texas.
Despite the prevalence of SLAPPs across the country, Congress has not enacted a federal anti-SLAPP law. Members of Congress have proposed anti-SLAPP legislation in the past. In 2015, a Republican congressman from Texas introduced the SPEAK FREE Act of 2015 (H.R. 2304), which obtained bipartisan support from 32 co-sponsors, as well as broad civil society support. However, the bill did not advance.
Unfortunately, some of the most aggressive practitioners of SLAPPs against civil society–such as the law firm Kasowitz Benson Torres LLP–have close ties to the Trump Administration, reducing the possibility for strong anti-SLAPP legislation at the federal level in the near future.
As a result, many anti-SLAPP advocates are focusing their efforts on achieving harmonized, effective anti-SLAPP laws at the state level. Currently, 26 out of 50 states have special laws that help to protect against SLAPPs and deter legal bullying. These laws will often allow the defendant to request an early dismissal of a SLAPP and recover the costs of legal defense from the SLAPP bully. In two states, judges have created narrow protections against SLAPPs in common law.
However, states’ anti-SLAPP laws do not consistently protect the same categories of free speech. Some are broad, and some are quite narrow. This patchwork set of laws allows legal bullies to shop around to find the best venue in which to bring their lawsuit. Greater consistency in states’ anti-SLAPP laws could help to end forum shopping.
For more information about SLAPPs, please visit the following pages: