The Need For A Federal Anti-SLAPP Law Is Clear And Overwhelming

Free Speech

from the and-yet-no-one's-interested dept

Lawyer Daniel Horwitz has a wonderful write-up for NYU’s Journal of Legislation & Public Policy on why we need a federal anti-SLAPP law. It’s a quick, but thoughtful overview (and, full disclosure, I gave him a couple of small points while he was researching the article), that details not just the need for more SLAPP laws in general, but specifically a federal anti-SLAPP law. As he makes clear in the piece, there are just way too many ways to get around state anti-SLAPP laws (if a state even has one, which many don’t):

Second, even in states that have enacted anti-SLAPP statutes, ?[t]he scope of [] anti-SLAPP statutes varies greatly.?[ For instance, some states provide robust protection against SLAPP suits?applying to virtually all constitutionally protected speech and offering a cornucopia of benefits such as a specialized procedure for obtaining early dismissal, an automatic stay of discovery, and mandatory attorney?s fee-shifting. By contrast, other states? anti-SLAPP statutes provide meager benefits and apply only narrowly, for instance, to speech made to government entities.

Third, even when a plaintiff files a SLAPP suit against someone who resides in a state with a strong anti-SLAPP statute, the substantive law of the defendant?s residence will not necessarily apply to the case. Instead, the law that governs the plaintiff?s claims will turn on the choice of law rules of the forum in which the suit was filed?an inquiry that can, and often does, result in the substantive law of the plaintiff?s residence or the place of injury applying instead.

It then notes the troubling trend, that we’ve discussed in the past, that many federal courts have now said that state anti-SLAPP laws cannot be used in federal court — meaning that as long as they assert federal causes of action, they can get around many state anti-SLAPP laws. That wouldn’t work with a federal anti-SLAPP law. That last one is important, because there are a variety of federal laws that are used for SLAPPs:

Plaintiffs also have had little difficulty filing SLAPP suits using federal causes of action?for instance, under the Lanham Act, 42 U.S.C. section 1985, the Copyright Act, and civil RICO statutes?which provide a straightforward means for plaintiffs to sue their critics, however baselessly, regarding protected speech.

From there, the article details how a federal anti-SLAPP law would solve many of these problems — making sure it applied in federal court and to federal causes of action — and that it would end cases more quickly and shift the fees to the frivolous, censorial plaintiffs. A key point made:

Where SLAPP suits are concerned, the process itself is the punishment, and many speakers cannot afford?or are understandably unwilling to bear?the heavy expense associated with that process at all.

As I said, the article is a quick read, even though it cites a ton of examples to make its points (28 footnotes for a 15 paragraph piece). And that’s because the need for a federal anti-SLAPP law is so overwhelming and so obvious that it doesn’t need more than 15 straightforward paragraphs. And yet, the movement to get one through Congress never seems to go anywhere, and it’s been a major disappointment. Congress could stand up for free speech and against frivolous lawsuits, but it doesn’t seem to want to get it done.

Filed Under: 1st amendment, anti-slapp, daniel horowitz, federal anti-slapp, federal claims, free speech