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One of the realities of business today is that, intentionally or no, companies have become de facto publishers. Whether on company websites, blogs, Twitter, or Facebook pages, the web and social media offer an ever-growing number of ways for business owners to communicate publicly. That also means they are vulnerable to unique new risks.
Businesses or individuals that communicate regularly about their industries, local happenings, or public policy – or that take any sort of stand on any of these matters – can find themselves facing defamation lawsuits that are intended simply to intimidate and silence a voice. Such suits are common enough to have a moniker: “SLAPP” suits, or Strategic Lawsuits Against Public Participation.
Easy to file, and easier still to threaten, it’s difficult to get even the most frivolous case dismissed without incurring serious time, cost and stress. And as each side bears its own costs in most civil litigation in the U.S., a deep-pocketed opponent can use the threat of financial ruin to get a less-well-heeled opponent to fold in the face of even a completely meritless defamation case. It’s time that the Federal government join states in taking action to protect individuals and businesses from this unnecessary threat.
A clear cut case
The thing about defamation is that the law requires having a certain thickness of skin. Defamation is not just something written about you that you don’t like. It’s got to be demonstrably false. It’s got to be damaging. And it can’t just be someone’s opinion.
By any objective measure, Inman’s piece wasn’t remotely defamatory; it simply expressed the sort of strong opinion that is absolutely protected by the first amendment – and it happened to be completely true.
The problem is that establishing that something isn’t defamatory can be far more costly than fighting it is worth. And the threat of legal action chilling what people and businesses are willing to say? That’s bad for all of us, and the free flow of ideas and information upon which our society depends.
States slap back
Fortunately, a number of states have come up with an elegant solution to the problem of SLAPP suits: the anti-SLAPP law. Under such laws, the defendant in a SLAPP case can file an immediate motion to dismiss the complaint – without having to incur the time and expense of discovery. Unless the plaintiff can then show that the case has definite merit, it will be dismissed with prejudice. And typically under such laws, the plaintiff will also be required to reimburse the defendant’s attorneys fees incurred in bringing the anti-SLAPP motion.
While 37 states have anti-SLAPP laws on the books, most of these laws are limited to suits related to the political process, rather than the far broader category of expressive rights. However, in recent years, places as ideologically different as Texas and Washington, D.C., have enacted anti-SLAPP laws that apply to any exercise of first amendment rights related to a matter of public concern – which pretty much covers anything a business owner would write about.
A need for Federal measures
Back to Inman. The creator of “The Oatmeal” was better situated than most. He’s someone who buys digital ink by the barrel, and his public response excoriating the lawyer who sent the demand letter has become the stuff of internet legend. And, importantly, he lives in Washington state, which has strong anti-SLAPP protection. Inman could comfortably respond aggressively, knowing that he would not be exposed to crippling cost and personal anxiety in order to vindicate his free speech rights.
Unfortunately for businesses that operate across multiple states, or in states without strong anti-SLAPP laws, the risk of being sued for exercising the right of free expression remains. That’s why an effort has been underway over the last few years, led by the Public Participation Project (disclosure: I am on the board of directors), to enact national anti-SLAPP legislation. Such legislation would take the broad protections and fee-shifting attributes of anti-SLAPP laws in California, Texas and Washington and apply them nationwide.
It’s an effort long overdue. While every state law is a step in the right direction, it’s still too easy for plaintiffs to “shop” for a state without anti-SLAPP protection in which to bring a lawsuit. A federal anti-SLAPP law would level the playing field and make sure that everyone could express themselves without fear of intimidation-via-lawsuit. Until then, business owners active in social media and blogging should get familiar with the status of anti-SLAPP in the states in which they operate – and support the effort to extend these protections nationwide.