Federal anti-SLAPP law focus of U.S. House hearing

By Luis Ferre Sadurni
Reporters Committee for Freedom of the Press
Originally published June 23, 2016

On Wednesday, the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee held a hearing on an anti-SLAPP (Strategic Lawsuits Against Public Participation) bill, which would combat lawsuits filed to intimidate exercise of free speech.

Rep. Blake Farenthold (R-Texas) introduced H.R. 2304, the SPEAK FREE Act, last summer and the bill was referred to the subcommittee on June 1, 2015. Similar to anti-SLAPP laws passed at the state level, the proposed legislation would amend the federal judicial code to allow defendants speaking out about official proceedings or matters of public concern a special motion to dismiss the case early in litigation as well as a stay on discovery in order to combat SLAPPs.

“What the SPEAK FREE Act does is make it easier for those who are victimized by abusive lawsuits to silence their voices [to dismiss] early litigation proceedings before they rack up thousands or tens of thousands of dollars in legal fees,” Farenthold said. “I think this is an important piece of legislation to protect the First Amendment right and carry on the vision of our founding fathers.”

Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, and one of four witnesses at the hearing, testified in favor of the bill.

“Anti-SLAPP statutes are an effective way to terminate meritless lawsuits, thus reducing burdens on the courts, and at the same time promoting the exercise of speech rights,” Brown stated in his testimony. “While journalists and news organizations certainly benefit from these laws, anyone who speaks out on controversial matters enjoys the benefit of anti-SLAPP protections.”

While 28 states, Washington, D.C. and Guam have some sort of anti-SLAPP statute, 22 states do not. Anti-SLAPP laws allow defendants to quickly dismiss SLAPP claims often brought to force a speaker to abandon criticism through intimidation and mounting legal costs.

Hearing witnesses Laura Prather, an Austin attorney for Haynes and Boone, LLP, and Aaron Schur, senior director of litigation at Yelp Inc., also expressed their support for the federal anti-SLAPP law.

“There are three primary reasons that we need federal legislation,” said Prather, who noted that the advent of the Internet age significantly increased the amount of meritless lawsuits against online expression.

“First, there is a patch-work of state laws in the area creating an invitation for forum shopping and inconsistent application of laws; second, there is a split of authority as to whether state anti-SLAPP laws apply in federal court; and, third, even in those states that have anti-SLAPP statutes, they generally do not apply to federal claims,” said Prather, testifying on behalf of The Public Participation Project.

Schur noted how users of Yelp, which compiles crowd-sourced reviews about local businesses, have been targets of SLAPPs by businesses who receive critical reviews. Last week, Schur said, Yelp received a complaint from a user who decided to delete an honest but negative review of a dentist after being sued by the dentist for $100,000.

“While statements of honest opinion and truthful experience are not bases for liability in this country, unfortunately, we’ve seen that even the simple threat of a lawsuit is highly effective at getting users to remove their reviews from consumer advocacy sites like ours,” Schur said. “The specter of lopsided litigation against an opponent with better financial resources is simply more than the average person is willing to take on, especially as even a successful defense generally provides no mechanism to recoup legal expenses.”

Hearing witness Alexander Reinert, a law professor at Cardozo School of Law, objected to the bill.

In his submitted testimony, Reinert argued that the bill would threaten civil rights cases that should not be considered SLAPP suits, impose substantial burdens on federal courts, interfere with state sovereignty, and potentially be unconstitutional. The law professor argued that, unlike many anti-SLAPP laws passed by states, the bill’s definition of a SLAPP suit is dangerously broad.

Reinert stated that the bill is an unwarranted intrusion into states’ rights and is almost certainly unconstitutional. According to the law professor, the bill would violate Article 3 of the U.S. Constitution, which establishes the judicial branch and Section 2, which limits the jurisdiction of federal courts.

“Mr. Chairman, I like Yelp,” Reinert said. “I use it. I’m sure James Madison would have liked it too. I can’t imagine he would have liked it so much that he would have been willing to throw overboard Article 3, the Seventh Amendment and state sovereignty on the basis of a potential problem that has been supported only by anecdote.”

The Seventh Amendment grants the right to a jury trial in certain civil cases.

Subcommittee Chairman Rep. Trent Franks (R-Ariz.) and Rep. Louie Gohmert (R-Texas) questioned witnesses regarding the bill’s constitutionality, state sovereignty, the bill’s provision of interlocutory appeal, and current examples of SLAPPs under federal law.

Rep. Steve Cohen (D-Tenn.) introduced a similar version of an anti-SLAPP bill in December 2009, but it failed to receive a hearing. The current bill has bipartisan co-sponsorship from 20 Democrats and 12 Republicans.