SPEAK FREE Act prevents SLAPP in face to free speech
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In 1966, a local branch of the NAACP instituted an economic boycott against white merchants in Claiborne County, Mississippi, in order to pressure elected officials to adopt several racial justice measures. In response, the merchants sued the NAACP for tortious interference with prospective economic advantage, and won $3.5 million in state courts.

Though not referred to as such at the time, NAACP v. Clairborne Hardware Co. is a classic example of a strategic lawsuit against public participation, or a SLAPP. The lawsuit’s sole purpose was to punish the NAACP’s exercise of its fundamental right to free speech and to petition the government for a redress of grievances. After many years and significant cost for the NAACP, the United States Supreme Court finally overturned the verdict, holding that “the boycott clearly involved constitutionally protected activity.”

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Now just imagine how quickly this case would have been dismissed if the SPEAK FREE Act (HR 2034), currently working its way through Congress, had been on the books in 1966. The SPEAK FREE Act provides a mechanism for federal courts to promptly dismiss those baseless lawsuits that are designed to punish people for speaking out.

Sadly, Claiborne Hardware is just one of the countless examples of cases aimed at censoring free speech, and since the advent of the Internet, SLAPPs are only growing in popularity. It has become commonplace for the often well-financed targets of petition campaigns to sue those who are speaking out against them, who are often of more modest means.

This pattern frequently manifests itself where a developer sues the neighbors who are opposing a proposed development through local planning processes, where a person publicizes his or her honest opinion about a business in a Yelp review, and in countless other situations where people voice their opinions against powerful and established special interests.

At present, 28 states plus the District of Columbia have anti-SLAPP laws. Generally, these laws require SLAPP plaintiffs to demonstrate a probability of prevailing on their claims in order to proceed in court, when those claims are based on defendants’ free speech or petitioning activities.

However, not all of the existing laws provide sufficient protection, and SLAPP plaintiffs have the ability to “forum shop” for a state without adequate free speech protections in which to file their lawsuit. At the end of the day, legal fees from SLAPP suits can bankrupt individuals simply for exercising their First Amendment rights.

Despite the clear need for such protection, there are still a few who oppose this legislation.  They recite a parade of horribles in which they imagine that countless worthy cases would never see their day in court.

This kind of rank speculation misleadingly ignore the fact that the SPEAK FREE Act expressly provides that all claims with minimal merit will see their day in court. Only those lawsuits that are clearly nothing more than improper attempts to attack the right of petition or free speech will be dismissed under the Act.

The critics also point to cases that, in their view, have improperly applied the First Amendment to limit civil rights claims. This is also a misleading criticism because the SPEAK FREE Act does not (and could not) alter the substantive constitutional law regarding how and when the First Amendment applies to bar a claim.

Some critics also baldly assert that existing state anti-SLAPP laws are systematically abused. The actual data demonstrates precisely the opposite: anti-SLAPP motions are little more than a tiny fraction of trial courts’ civil dockets. In California, between fiscal years 2010 and 2014, the 2,051 anti-SLAPP motions filed constituted only about 0.041% of the 5,006,580 total civil filings.

A final criticism is that somehow Congress does not have the constitutional power to enact it.   Wrong. The authority of federal courts under Article III to hear cases involving federal questions includes cases raising First Amendment speech and petition questions.

As an attorney who has represented both sides in anti-SLAPP cases, I have seen time and time again how an anti-SLAPP law can provide a critical safeguard that protects the right of ordinary citizens to petition their government and to speak their minds without fear of being dragged into lengthy and expensive litigation by the more powerful and wealthier interests that they seek to challenge.

This is why I have expressed my support for the SPEAK FREE Act. Without it, millions of Americans who live in states without such protection will continue to face the Hobson’s choice of remaining silent or risking financial ruin from SLAPP litigation.

Rosen is a partner at Horvitz & Levy LLP, the largest appellate law firm in California, who has litigated more than 50 appeals under California's anti-SLAPP statute, on behalf of both plaintiffs and defendants. He is also Vice-President of the Public Participation Project, a national non-profit dedicated to protecting the free speech and petition rights of all Americans.