We need a federal anti-SLAPP statute to safeguard first amendment rights and ensure access to justice.
At Earthjustice, we fight for equal access to justice and to ensure that our courts are open, fair, and affordable to all. Unfortunately, bad actors wanting to limit access to the court seek to silence those very people exercising their first amendment right to hold them accountable. One of the tools at their disposal: Strategic Lawsuits Against Public Participation (SLAPP).
What is a SLAPP suit?
Strategic Lawsuits Against Public Participation, also known as SLAPP suits, are lawsuits that target activists, journalists, protesters, and other public figures to entangle them in endless legal proceedings meant to silence their voices. These frivolous lawsuits are used by the wealthy and powerful corporations to intimidate those speaking out against them. It’s a self-serving effort predicated on the assumption that if they can tie someone up in court, SLAPP suit targets will silence themselves to avoid costly litigation.
What does a SLAPP suit look like?
SLAPP suits are more common than you think and range in varying degrees of absurdity. Former President Donald Trump used a SLAPP suit against author Timothy O’Brien who claimed Trump’s net worth was much lower than he publicly claimed. After suing O’Brien for $5 billion dollars for libel, a judge tossed out the lawsuit after almost four years of back-and-forth. In another high-profile example, comedian and host of Last Week Tonight John Oliver was served a SLAPP lawsuit after airing a segment on Murray Energy, the largest privately owned coal company in America, in which he mocked then-CEO Bob Murray and highlighted a mining accident at the company mine in which nine people died. Murray sued John Oliver for damages, kept him tied up in court for almost two years, and attempted to get a gag order issued that would prohibit Oliver from re-airing the segment or even discussing it in the future.
But SLAPP suits don’t just impact journalists and late-night comedians. Increasingly, everyday people are becoming caught in the crosshairs. In 2016, many of us were galvanized by the courage and tenacity of the Standing Rock Sioux, who stood up to the fossil fuel company Energy Transfer Partners attempting to build the Dakota Access Pipeline through their reservation and imperiling their drinking water. Thousands of protesters joined the Standing Rock Sioux in fighting for their right to control their land and protect their drinking water. In 2017, after months of protests that garnered media attention around the world, Energy Transfer Partners sued Greenpeace and other individuals and organizations for damages of $900 million under U.S. racketeering laws—the same laws used to fight the mafia. These lawsuits weren’t about recouping real monetary damages. It was about silencing the voices of those protesting and deterring others from raising their voice against powerful companies in the face of injustice.
How do SLAPP suits impact our access to justice?
We aspire for the courts to be an institution that upholds the rights of all, however, SLAPP suits are a way for the rich and powerful to abuse the court system and turn it into a tool that silences individuals and organizations. SLAPP suits disguise themselves as legitimate lawsuits, and while most end up being dismissed, their real goal is quashing legitimate dissent and protest in the process. If you’re an everyday person, like the Indigenous water protectors at Standing Rock, the threat of being responsible for hundreds of millions of dollars in damages and legal fees could most certainly chill your willingness and ability to exercise your first amendment right to protest. The wealthy and powerful corporations are counting on this, and they know exactly what they’re doing when they file these frivolous lawsuits.
Protesting is one of the cornerstones of our democracy, a right so important in the early days of our country that it is explicitly included in the first amendment. One thing is clear. Our courts must uphold this right for everyone and cannot become tools for the rich and powerful to abuse power and limit the ability of all of us to seek justice and speak out against issues impacting our communities.
What can we do to end this abuse?
Lawmakers on both sides of the aisle have recognized the chilling effects SLAPP suits have on protected speech and protest, yet there is currently no federal anti-SLAPP statute to give individuals a mechanism to quickly dismiss frivolous lawsuits. As of September 2022, 32 states and the District of Columbia have enacted some form of anti-SLAPP laws to combat SLAPP suits and allow defendants to quickly dismiss cases with no merit in court and avoid years of costly legal fees.
On September 15, 2022, Representative Jamie Raskin (MD-08) introduced H.R. 8864, the SLAPP Protection Act, to help end the use of these lawsuits and provide victims of SLAPP suits with mechanisms to quickly dismiss them in federal court. The bill creates a process to quickly identify SLAPP suits in federal court and minimize the cost to SLAPP targets while increasing the costs on those who file them. It also builds in protections to prevent abuse of the law and ensures that individuals and groups bringing genuine public interest lawsuits can do so without being mislabeled as a SLAPP. Congress must act now to ensure that everyone—no matter the state they live in—has the ability to exercise their first amendment rights without fear and has access to our courts.
A legislative director in Washington, D.C., Coby works with Congress, federal agencies, and partner organizations to defend access to justice through access to the courts.
Established in 1989, Earthjustice's Policy & Legislation team works with champions in Congress to craft legislation that supports and extends our legal gains.