July 19, 2012 | By Adi Kamdar

The Case for a Federal Anti-SLAPP Statute

The ability to speak openly is a hallmark of the Internet. Bloggers are able to create, commend, and criticize at will, as our Constitutionally protected right to free speech carries through both online and off. Sometimes, however, legitimate speech can be censored by strategic defamation lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP). These frivilous lawsuits are often filed by plaintiffs with deep pockets and have little to no chance of winning, yet are aimed at pressuring the target into settling for fear of expensive litigation.

EFF recently successfully defended Matthew Inman, creator of the online comic The Oatmeal, from a SLAPP. Inman had simply criticized rival humor website FunnyJunk, which had been republishing comics from The Oatmeal website. FunnyJunk hired lawyer Charles Carreon to bring suit against Inman for defamation, demanding absurd settlement fees. The issue is that Inman's posts against FunnyJunk were lawful, protected free speech; the lawsuit against him was pure intimidation. With Inman's supportive fanbase and bold response, Carreon seemed to have picked the wrong person to bully.

Had Carreon not dropped his frivolous case, Inman could have filed a motion under the California's strong anti-SLAPP statute. Other bloggers around the country aren't so lucky. What we need is a federal anti-SLAPP statute that would discourage plaintiffs like Carreon from filing lawsuits at all. Currently, twenty-eight states have anti-SLAPP laws that allow for free speakers to file a motion and get absurd lawsuits dropped. A similar law at the federal level would provide this opportunity to bloggers, journalists, filmmakers, authors, and other creators across the nation.

The need for such a law is evident. The Oatmeal scenario is not a one-time case. Over the past few years alone, there have been several prominent examples where anti-SLAPP laws have proved their worth, as well as few cases where the lack of such a law unfortunately chilled lawful, free speech.

In 2009, the blog Boing Boing was the subject of a defamation lawsuit brought by VoIP device maker magicJack. Boing Boing had published an article on magicJack's End-User License Agreement (EULA), which was critical of the company but entirely within the bounds of free speech. MagicJack, however, claimed that Boing Boing's statements were false and damaging, so they took the blog to court. Luckily, Boing Boing's lawyers utilized the California anti-SLAPP law—one of the first of such statutes, passed in 1992—to get the case dismissed in court.

Last year, Washington Redskins owner Dan Snyder charged the Washington City Paper with libel after the paper published a humurous but well-sourced article that was critical of Snyder's business practices. His motives became clear when he sent the paper a threatening letter before suing, saying, “The cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” Instead of bringing the suit in DC, where both parties were based, he initially filed the suit in New York, which has a narrow anti-SLAPP statute that would not have applied. Snyder later moved the suit (for "legal reasons") to DC, which had just passed a strong anti-SLAPP law. Facing tougher circumstances, Snyder dropped the case soon after.

Both Boing Boing and the Washington City Paper were lucky, in a sense, to be operating in a state that had a strong anti-SLAPP statute. Earlier this year, Frank VanderSloot—a billionaire finance co-chair for Mitt Romney's presidential campaign—fired legal threats at news organizations big and small with defamation charges and copyright threats after they posted critical articles about his political views. Mother Jones and Forbes initially took down posts rather than face a lawsuit. Small bloggers in VanderSloot's home state of Idaho were forced to do the same in fear of expensive litigation costs. Unlike with the Boing Boing and Washington City Paper cases, Idaho does not have any anti-SLAPP statutes on the books. VanderSloot was successful in censoring criticism until independent journalist Jody May-Chang decided to stand up to VanderSloot at great personal risk.

Unfortunately, VanderSloot's tactics are common among those who have the money to chill speech by threatening costly lawsuits. The targeted journalists who relented and took down their articles could have been helped by a federal anti-SLAPP law.

The Oatmeal case was unique in that Inman received free legal help and successfully rallied thousands of fans to his cause. However, any blogger without the fortune of prominence is at the risk of being bullied into censorship. Lawful speech should be protected, regardless of the speaker's status or place of residence.

Go here to join EFF and Public Participation Project in asking your member of Congress to support a strong federal anti-SLAPP statute.


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