Unintended Consequences of Anti-SLAPP Laws

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Anti-SLAPP laws are procedural mechanisms in place in roughly more than half of the states in the U.S. SLAPP is an acronym that stands for Strategic Lawsuit Against Public Participation.

The intent behind anti-SLAPP laws is good. They’re meant to protect free speech. They’re meant to provide defendants sued over speech-related claims with an early opportunity in the litigation to have the judge take a close look at both the pleadings and the available evidence, to determine whether the statements are even capable of a defamatory meaning or otherwise protected free speech.

If the defendant wins that application, motion, petition, whatever it’s called in the particular state, then not only is the plaintiff’s complaint dismissed, but also the plaintiff is made to pay the attorney’s fees for the defendant. So in essence, it acts as a double slap to the face.

Debate Over Anti-SLAPP Laws

There is debate over whether SLAPP laws in practice have the consequences that are intended. At their core, anti-SLAPP laws are meant to discourage and deter the rich man with deep pockets from chilling the free speech of someone who cannot afford to defend a defamation case or other speech-related claims.

We get calls not infrequently from potential clients who have a lot of money. As we explain to them that the speech they want to sue over is not actionable, we may hear something like, “Well, the defendant doesn’t have any money. So if you file suit, they’re just going to delete whatever’s out there and we’ll be able to bully him out of court.”

SLAPP laws come in to prevent those types of tactics because it can be painful to have to pay someone else’s attorney’s fees.

Impact of Anti-SLAPP Laws

However, in practice, it seems that SLAPP laws have very little effect on the real deep-pocketed plaintiffs. Billionaires and millionaires can afford to pay the anti-SLAPP penalty, so they continue to use the courts the same way they would otherwise. Who it does deter, though, unfortunately, are the same people who we seek to protect by not imposing a loser-pay system across the legal landscape.

For instance, the United Kingdom, in most circumstances, does have a loser-pay system. Meaning if you sue someone and lose, you have to pay their attorney’s fees. However, here in America, we consider that to be against public policy generally because it closes the courthouse doors to people who cannot afford to pay that kind of penalty.

The American Rule on Legal Fees

In most circumstances, the American rule is each side pays their own attorney’s fees. There are exceptions for civil rights violations, statutory laws that provide exceptions, and contractual provisions with fee-shifting mechanisms. However, generally speaking, the American rule stands.

Anti-SLAPP laws, in a way, run afoul of that principle. Lawmakers should be cautious and consider what type of speech anti-SLAPP laws should apply to, such as political discourse or speech traditionally covered by privilege.

Potential Pitfalls of Anti-SLAPP Laws

Applying anti-SLAPP laws too broadly can preclude everyday Americans from protecting their reputations. While anti-SLAPP laws aim to prevent suits that chill free speech, they may inadvertently chill the ability of individuals to seek redress for reputational harm.

There are arguments against anti-SLAPP laws, and there are arguments in favor of them. My primary concern is that they don’t quite have the intended consequences. They don’t deter the people they are meant to deter.

Existing Legal Mechanisms

We already have mechanisms in place within litigation procedures, such as Rule 11 and Ohio’s Revised Code Section 2323.51, which provide penalties for frivolous filings. These penalties can be applied to both litigants and attorneys and serve as deterrents against baseless lawsuits.

In speech-related claims, judges are already proactive in ensuring that cases are grounded in fact and law. Whether or not a state has anti-SLAPP laws, the judiciary plays a critical role in evaluating cases to ensure they do not infringe on free speech.

Conclusion

In conclusion, while anti-SLAPP laws serve a purpose, broad and wide-ranging legislation can close the courthouse doors to average individuals seeking redress for reputational harm. A balanced approach is necessary to ensure free speech protections without inadvertently restricting access to justice.

This page has been peer-reviewed, fact-checked, and edited by qualified attorneys to ensure substantive accuracy and coverage.

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