by Carrington Calder, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
A Strategic Lawsuit Against Public Participation (“SLAPP”), is a fitting name for the bullying effect these lawsuits are intended to have. A SLAPP suit is a term used for lawsuits that are intended to restrain a party who is exercising a protected right. The primary goal of a SLAPP suit is not to defeat an opponent on legal merits, but to silence them by dragging an opponent into a maze of expensive legal conflict.[1] SLAPP suits have been traditionally used by a ‘Goliath’ big business against a ‘David’ smaller party that cannot afford extensive litigation. Thirty-four states and the District of Columbia have adopted anti-SLAPP legislation.[2] However, despite attempts by Congress, the United States has yet to adopt federal legislation to prevent SLAPP suits.[3]
However, recent times have demonstrated a more personal kind of SLAPP suit. With present-day use of social media, communications are quickly spread far and wide, and it has never been easier for the common man to infuriate the rich and famous. The trend of celebrities using the law as a weapon is increasing, but the trend might bring to light the free expression issues of SLAPP suits.
This article will first provide background on SLAPP suits generally and the utilization of SLAPP suits in practice. Part II will examine examples of SLAPP suits and how they have been interpreted by courts and the public. Part III will examine the present state of anti-SLAPP statutes and the benefits of those statutes. Finally, Part IV will conclude by recommending a course of action for uniform anti-SLAPP legislation.
II. Background
Two common types of SLAPP suits are cases against journalists and those against environmental activists brought by more powerful parties. For example, in Murray v. Chagrin Valley Publishing Co., Robert Murray of Murray Energy Group sued a newspaper that had reported on protests in front of Murray Energy Group’s headquarters.[4] The newspaper prevailed, but not before extensive appeals.[5] Despite the defendant’s victory, Murray’s ultimate goal was accomplished when the defendant stated to the Ohio Judiciary Committee “[w]hile we will continue our activism, we will never speak out against him or his activities again.”[6]
Additionally, in an environmental SLAPP suit, Protect Our Mountain Environment Inc. v. District Court of County of Jefferson, a group of concerned citizens challenged a re-zoning project, which allowed 507 acres to be developed into a residential center by Gayno Inc.[7] Gayno filed suit in retaliation against the group, Protect Our Mountain Environment Inc. (“POME”) for abuse of the legal process and sought $40 million in damages.[8] Despite POME’s assertion that their acts were protected by the First Amendment, the District Court dismissed their claim, calling it a “sham.”[9] The Supreme Court reversed, ordering the lower court to consider the merits of the case.[10]
As these examples show, SLAPP suits can serve to distract opponents and silence advocacy, and unlike other litigation, a winning argument is not required. As seen in Murray, legal teams who use SLAPP suits may have little care for the legal merits of their case since their goal of silencing their opponent can be accomplished without consideration of the case’s merits.[11] A commonality between all SLAPP suits is that a party with more financial or other power sues a party of lesser power for exercising a protected right. These lawsuits may result from trivial activities such as a negative review or a critical Facebook post regarding a company or service.[12] This article will examine how the more publicly broadcasted SLAPP suits can affect the future of SLAPP legislation.
III. Discussion
Despite the harms of SLAPP suits, federal law remains silent on anti-SLAPP policies.[13] Former President Donald Trump is known for bringing SLAPP suits.[14] In Trump v. O’Brien, Trump sued author Tim O’Brien for misrepresenting his net worth.[15] In O’Brien’s book, he claimed that Trump’s net worth was roughly $250 million, but Trump asserted his net worth was between two to five billion dollars.[16] Trump sued alleging that the false assertion damaged his reputation.[17] The Law Division of the Superior Court of New Jersey granted summary judgment to O’Brien which was appealed and affirmed.[18] It can be argued that because O’Brien was victorious the law served its purpose, and that standard civil procedure suffices for neutralizing SLAPP suits. Yet, even with O’Brien’s victory, Trump was able to force the opposing party through extensive litigation and an expensive appeals processes.[19] Trump exemplified the rationale behind SLAPP suits after stating: “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.”[20]
This comment and Trump’s attitudes exhibit a policy that favors the abusive qualities of SLAPP suits. Trump stated his goal was to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”[21] This would have a significant effect on the actual malice standard required to succeed on a defamation claim against a public figure, and would expand the ability of public figures to sue for defamation, one of the common courses of action in a SLAPP suit.[22]
SLAPP suits can also target individuals, who, unlike journalists, have even fewer resources to challenge them. For example, college student Jack Sweeney has been threatened with legal action multiple times for his use of public information.[23] Sweeney has strived for the transparency of public information by running social media accounts that track the private jets of celebrities.[24] He uses publicly available flight tracking information to compile the data and makes it available through social media.[25] His wide array of followers ranges from celebrity fans to environmental activists.[26] Some view this display of information as an invasion of privacy and have not taken kindly to Sweeney’s actions.[27]
One example is pop star Taylor Swift. By posting the whereabouts of Swift’s private jet, he prompted a cease-and-desist letter from Swift’s legal team stating that he engaged in “stalking and harassing behavior.”[28] Sweeney’s attorney responded describing it as an “attempt to bully Jack into doing something that legally he doesn’t have to do.” Sweeney’s attorney also noted the trend of SLAPP suits stating that “[u]nfortunately folks with power and money often do this.”[29] The public perception of Swift’s actions are mixed. Some see the information as a possible threat to the safety of those who are tracked, while others see it as vindictive bullying by Swift’s legal team.[30]
The federal response to this case has ignored SLAPP issues and instead Congress adopted legislation that allows private plane owners to request the government to keep their registration information anonymous.[31] Despite this, a benefit of these examples is that they bring the reality and prevalence of SLAPP suits into the public eye, but we have yet to see if this will result in a change in SLAPP suit legislation.
A. Federal Legislation
Anti-SLAPP legislation has been introduced in the House of Representatives, but has yet to become law.[32] It is not improbable that anti-SLAPP legislation will be reintroduced, however the trend demonstrates the federal government’s continued disregard for public transparency that is often provided by victims of SLAPP suits. The federal government’s disregard to federal anti-SLAPP legislation allows for the further abuse of legal processes.
B. State Legislation
At the state level, the Uniform Law Commission’s Uniform Public Expression Protection Act (“UPEPA”) has been adopted by nine states and introduced by nine additional states. UPEPA has effectively acted as a barrier against SLAPP suits.[33] The primary requirement of the UPEPA is that if the act applies, the plaintiff must assert a prima facie case for each one of their claims to move forward with the litigation.[34] States may adopt UPEPA directly or create a similar statute modeled off UPEPA.[35] Requiring plaintiffs to assert a prima facie case at the initial stages of the lawsuit ensures that bad faith claims are unable to go further and alleviates the harassment effect of SLAPP suits.
One of the strongest anti-SLAPP laws is California Code Section 425.16, which provides that a cause of action arising from a person’s right to free speech will be struck down unless there is a probability that the plaintiff will prevail on his claim.[36] Courts enforce this law in a two-tiered process.[37] First, the defendant must prove that the plaintiff’s complaint arose from the defendant’s right to free speech in connection with a public issue.[38] If this burden is met, the plaintiff must then demonstrate the probability of prevailing on their claim.[39] If the plaintiff files such a motion, the motion must be heard within thirty days unless the docket is full.[40] The motion will also place a stay on discovery until the motion is heard.[41] If the defendant succeeds on their motion they are entitled to attorney’s fees and costs.[42] The statute places an emphasis on correcting the harm caused by SLAPP suits during discovery and lengthy trials. By removing the traditional burdens of SLAPP suits, California has further protected victims of these suits and provided recourse for attorney’s fees, which may deter bad faith claims.
However, one problem with anti-SLAPP legislation is that the legislation may conflict with the constitutional protections of due process. By providing more protections for defendants, courts must discern whether anti-SLAPP legislation unfairly burdens the rights of a plaintiff. Minnesota also had an anti-SLAPP law, however it required that the plaintiff prove by “clear and convincing evidence” that the defendant was not immunized by exercising a protected right.[43] The Minnesota Supreme Court overturned the statute in Leiendecker v. Asian Women United of Minn.[44] The court stated that the law required an impermissibly higher burden of proof before trial, and because it was not an equitable issue, the parties were entitled to a jury trial.[45]
The key difference is the wording of these statutes. Under California law the plaintiff must only establish the probability that they will prevail on their claim, while the Minnesota statue requires the higher standard of “clear and convincing evidence.”[46] Anti-SLAPP legislation, can upset the established order of procedure, so careful drafting of anti-SLAPP statutes is required to keep the statutes from being overturned in the future.
IV. Conclusion
With adequate anti-SLAPP legislation courts will be able to quickly remove bad faith claims and protect individuals’ First Amendment rights. Jurisdictions without anti-SLAPP laws have been favorited among parties looking to silence critics and have encouraged forum shopping. Those looking to bring SLAPP suits will likely choose to litigate in jurisdictions without anti-SLAPP laws. This highlights the need for uniform anti-SLAPP laws, therefore jurisdictions should accept the Uniform Law Commission’s UPEPA. Despite famous figures bringing SLAPP suits into public light, jurisdictions are still far away from comprehensive measures to defeat them.
[1] Kevin Goldberg, How Anti-SLAPP Laws Protect Your Right to Free Speech, Freedom Forum, https://www.freedomforum.org/anti-slapp-laws/ (last visited Oct. 4, 2024).
[2] Anti-SLAPP Legal Guide, Reporters Committee for Freedom of Press, https://www.rcfp.org/anti-slapp-legal-guide/#:~:text=As%20of%20July%202024%2C%2034,%2C%20New%20Jersey%2C%20New%20Mexico%2C (last visited Oct. 4, 2024).
[3] Goldberg, supra note 1.
[4] Murray v. Chagrin Valley Publ. Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014).
[5] Id.
[6] Enact the Ohio Participation Act: Hearing on S.B. 215 Before the S. Judiciary Comm., 2020 Leg., 135th (Ohio 2020 (statement of Lisa Ciocia).
[7] Protect Our Mountain Env’t, Inc. v. Dist. Ct. of County of Jefferson, 677 P.2d 1361 (Colo. Sup. Ct. 1984).
[8] Id. at 1364.
[9] Id. at 1364.
[10] Id. at 1370.
[11]Murray v. Chagrin Valley Publ. Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014).
[12] Goldberg, supra note 1.
[13] Paul Farhi, What really gets under Trump’s skin? A reporter questioning his net worth, The Washington Post, Mar. 8, 2016, https://www.washingtonpost.com/lifestyle/style/that-time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3e-e4c2-11e5-b0fd-073d5930a7b7_story.html.
[14] Trump v. O’Brien, 29 A.3d 1090 (N.J. Super. Ct. App. Div. 2011).
[15] Id.
[16] Id. at 1092.
[17] Id. at 1095.
[18] Id. at 1092.
[19] Id.
[20] Farhi, supra note 13.
[21] Hadas Gold, Donald Trump: We’re Going to ‘open up’ libel laws, Politico (Feb. 26, 2016, 02:31 PM), https://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866.
[22] N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
[23] Mike Wendling, Jack Sweeney: The planespotting student who angers Taylor Swift and Elon Musk, BBC (Feb. 21, 2024), https://www.bbc.com/news/world-us-canada-68248168.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Koh Ewe, ‘Wrongful and Dangerous Actions Must Stop’: Read the Full Cease-and-Desist Letter Taylor Swift’s Lawyers Sent to Her Flight Tracker, Time (Feb. 7, 2024 9:00 PM), https://time.com/6692227/taylor-swift-cease-desist-letter-jack-sweeney-jet-tracker-emissions/.
[29] Wendling, supra note 23.
[30] Id.
[31] Lucas Ropek, Congress is cracking down on private jet tracking — including Taylor Swift’s, Quartz (May 23, 2024), https://qz.com/congress-has-cracked-down-on-private-jet-tracking-1851494954.
[32] H.R. 8864 117th Cong. (2022).
[33] Public Expression Protection Act, Uniform Law Commission, https://www.uniformlaws.org/committees/community-home?CommunityKey=4f486460-199c-49d7-9fac-05570be1e7b1 (last visited Oct. 4, 2024).
[34] Id.
[35] Id.
[36] Cal Code Civ. Proc. § 425.16 (Deering, 2024).
[37] Curtis E.A. Karnow, Anti-SLAPP Decision Tree, Bepress (2021) https://works.bepress.com/curtis_karnow/42/.
[38] Id.
[39] Id.
[40] Public Expression Protection Act, supra note 34.
[41] Id.
[42] Id.
[43] Minn. Stat. § 554.02 (2024).
[44] Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623 (Minn. Sup. Ct. 2017).
[45] Id. at 637.
[46] Minn. Stat. § 554.02; Cal. Code Civ. Proc. § 425.16.
Cover Photo by Stephen Mease on Unsplash.
