SPEAK FREE Act would silence civil rights and public interest litigants
© Greg Nash

In 1948, an African-American man named G.W. McLaurin sued the University of Oklahoma to challenge a state law that banned colleges from educating blacks and whites together. As appalling as this law seems today, Mr. McLaurin had to fight hard to vindicate his rights, and his case ultimately paved the way for the complete desegregation of schools when he prevailed in United States Supreme Court. Landmark cases like Mr. McLaurin’s are critical in developing bodies of law that protect and advance our rights. That’s why it’s so alarming that Congress is now considering a bill that imperils this critical function of democracy.

The legislation at issue is the SPEAK FREE Act of 2015 [H.R. 2304], introduced by Rep. Blake FarentholdRandolph (Blake) Blake FarentholdMembers spar over sexual harassment training deadline Female Dems see double standard in Klobuchar accusations Lawmaker seeks to ban ex-members from lobbying until sexual harassment settlements repaid MORE of Texas. Proponents of the bill claim that it will simply create a legal mechanism to prevent businesses from suing customers who leave critical reviews on websites like Yelp. However, one glance at the language of the H.R. 2304 shows that it would give defendants powerful procedural tools to silence marginalized plaintiffs like Mr. McLaurin.

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Proponents argue that H.R. 2304 targets so-called Strategic Lawsuits Against Public Participation (SLAPP), which are meritless lawsuits brought to suppress free speech. Twenty-eight states have adopted some type of anti-SLAPP measure. Even in the limited form in which anti-SLAPP laws currently exist, there is no empirical evidence that they actually accomplish their intended purpose. In fact, close observers have noted that anti-SLAPP laws are quickly becoming another tool for powerful interests to delay justice in meritorious cases. 

For example, consider the case of Monique Rathbun, wife of a high-ranking Scientology defector, who sued the Church of Scientology in Texas state court for harassment and surveillance. In response to Ms. Rathbun’s lawsuit, the Church argued that the harassment and surveillance alleged by Ms. Rathbun was protected free speech and invoked Texas’ anti-SLAPP statute to stall the case. Although both the trial and appellate courts denied the Church’s anti-SLAPP motion, simply filing one at the onset of litigation allowed The Church to automatically stay discovery and file an appeal that led to substantial delay in the case.

If this seems absurd, that’s because it is. As the above example shows, ill-conceived anti-SLAPP laws can fatally stall cases without requiring the defendant to show that the case is in fact a SLAPP. H.R. 2304 is perhaps the most ill-conceived of all anti-SLAPP measures, and would apply to a wide range of civil cases nationwide.

The bill improperly defines SLAPP suits so broadly that it would sweep within its ambit important civil rights and public interest litigation. Specifically, the bill would categorize a SLAPP suit as anything based in whole or in part on written or oral expression that is related to a broadly-defined “matter of public concern.”  

Had H.R. 2304 been the law when Mr. McLaurin filed suit, the defendants would have had powerful tools at hand to stop him at the start. Under Section 6202(a), they could have filed a “special motion to dismiss” the case by forcing the plaintiff to demonstrate a likelihood of success on the merits before getting any discovery. Even worse, the defendants would have been able to obtain automatic attorneys’ fees against Mr. McLaurin if they prevailed. One wonders if Mr. McLaurin or other civil rights advocates would have brought suit faced with such unfavorable procedures.

Proponents like Yelp, Inc. claim that H.R. 2304 is necessary to protect against censorship of consumers who want to give honest reviews but who are frightened by the prospect of lawsuits. As evidence, in its written testimony before the House Judiciary Committee Subcommittee on the Constitution and Civil Justice last month, Yelp said that more than 50 million reviews have been posted on its website in the past two years.  

Of those reviews, Yelp tells us that about 10 million are negative in some way, which comes out to about 14,000 negative reviews a day. Yet, in that same testimony, Yelp can only identify three instances in the last month in which users complained that a business brought up potential litigation in response. Yelp’s own evidence indicates that H.R. 2304 is a solution in search of a problem – and certainly not one worthy of closing the courthouse doors to individuals whose civil rights have been violated.

Of course, it is worthy of concern when individuals are threatened with meritless lawsuits for exercising their First Amendment right to free speech. But HR 2304 would drastically expand federal jurisdiction over state court claims involving expression (almost certainly in violation of the constitutional limits on federal jurisdiction), impose new and unprecedented procedures in federal court (which will clog district and appellate courts alike, while also violating the Seventh Amendment right to a jury trial), and make important civil rights and allied claims more difficult to bring and prosecute, all based on weak anecdotal evidence from companies like Yelp.

Real SLAPP suits can be legitimate problems for courts to sort out, but states are already experimenting with solutions. State legislatures and state courts are well-situated to respond to these problems and to ensure that First Amendment rights are being protected. Federal intervention like H.R. 2304 is unnecessary, unwarranted, and unconstitutional.

Reinert is Professor of Law at the Cardozo School of Law