Bipartisan bill would protect speech from harassing lawsuits

A new bipartisan bill could fix a big gap in federal law that leaves journalists and everyone else vulnerable to harassing lawsuits targeting their speech.

Reps. Jamie Raskin and Kevin Kiley and Sen. Ron Wyden introduced the Free Speech Protection Act last week. The bill gives victims of baseless lawsuits targeting their free speech, known as strategic lawsuits against public participation, a way to fight back in federal court.

SLAPPs use the time, expense — and stress — of lawsuits to punish free speech. Wealthy people, the powerful, and corporations have money to burn on lawyers to sue the journalists, activists, and regular people who criticize them. Those who have to defend themselves from these lawsuits often don’t. Even if they do defend themselves and win, they still lose.

Journalists are often the target of SLAPPs. For example, billionaire Sheldon Adelson filed multiple lawsuits against journalists and others based on dubious legal claims related to their criticism of him. One of Adelson’s lawsuits drove a Las Vegas Review-Journal columnist to bankruptcy as his daughter was undergoing treatment for cancer. Adelson ultimately dismissed the case and agreed to pay the columnist’s costs.

But it’s not only billionaires who file SLAPPs against reporters. For instance, earlier this year, a court threw out a University of Notre Dame professor’s SLAPP against The Irish Rover, a small Catholic publication at the college that reported on her abortion rights activism. She used the frivolous argument that the First Amendment doesn’t protect a student newspaper at a private university. The Irish Rover is now trying to recover the more than $175,000 it spent defending itself.

In the Irish Rover case, an Indiana state anti-SLAPP law empowered the publication to fight back. Many state legislatures — whether led by Republicans or Democrats — have passed state-level anti-SLAPP laws to help ensure that their citizens can speak freely without fear of being sued into oblivion.

The problem is that state anti-SLAPP laws don’t always apply when a journalist or someone else is sued in federal court over their speech. Some SLAPP plaintiffs even take advantage of that fact and specifically try to file their cases in the federal court system, clogging it with frivolous lawsuits.

That’s where the Free Speech Protection Act comes in. The bill would create protection at the federal level against SLAPPs. While there are some differences between the Free Speech Protection Act and some state anti-SLAPP laws, the bill provides important protections against SLAPPs by:

• Allowing defendants to file an early motion to dismiss, and then requiring expedited review of the motion by a judge, so that SLAPPs can be dismissed quickly, before the costs they impose can rise.
• Staying discovery — which can be expensive and privacy-invasive — while the motion to dismiss is pending.
• Creating a “rebuttable presumption” of fee-shifting, which allows judges to make SLAPP victims financially whole by requiring the plaintiff to pay them the fees they expended fighting the SLAPP.

The act isn’t going to pass this Congress, which is already winding down. But by introducing the bill now, Raskin, Kiley and Wyden kicked off an important conversation about what Congress should do to stop SLAPPs. You can contribute, too, by telling your members of Congress to support the Free Speech Protection Act.

Both Democrats and Republicans agree on the fundamental right of freedom of speech. Even President-elect Trump has used anti-SLAPP laws as part of his legal defense. The next Congress must take up the Free Speech Protection Act to protect Americans exercising that right.