Recent Supreme Court Cert Denial Highlights Need for Passage of Federal Anti-SLAPP Statute

PPP Board Member Laura Prather recently published a piece for Lexology about the need for federal anti-SLAPP legislation:

“Strategic Lawsuits Against Public Participation (otherwise known as “SLAPP” suits) are more prevalent than ever given the ease of communication and multitude of platforms available for getting messages out. They are gaining even more notoriety in the presidential election since candidate Donald Trump vowed to “open up” the current libel laws to further protect him from facing public criticism. The irony is, Trump has been filing and threatening lawsuits to shut up critics and adversaries his entire career. He forced reporter Tim O’Brien through years of litigation over the Trump biography that assigned a lower valuation of his net worth than Trump felt was correct. He sued the Chicago Tribune’s architecture critic over a piece in which he commented that a planned Trump skyscraper in lower Manhattan would be “silly.” He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. And, he sued comedian Bill Maher over a joke. When asked about this laundry list of litigation arising out of other people’s speech, Trump commented at times he knew he couldn’t win but brought the suit anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” This is a quintessential SLAPP suit – one without merit brought to silence a critic.

The Legislatures in twenty-nine states, the District of Columbia and the territory of Guam have all seen the merit in passing Anti-SLAPP legislation to curtail the ability of bullies from using the court system to squelch the First Amendment rights of others. This has left a patchwork of protection that savvy plaintiffs have been known to work around by filing actions in jurisdictions that have not enacted SLAPP statutes. Another quandary presented by this primarily state-born protection is whether it applies in federal court. For more than fifteen years, federal courts have applied state anti-SLAPP statutes to federal cases when sitting in diversity jurisdiction because they have viewed SLAPP statutes as being designed to prevent substantive consequences – the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit under state law regarding defamation. In 2014, however, the D.C. Circuit found the Erie doctrine barred the application of the D.C. anti-SLAPP statute in federal court. The conflict now results in a circuit split.”

Read the full post here.