Butler University’s Lawsuit Textbook CyberSLAPP

Strategic Lawsuits Against Public Participation, or SLAPPs, are meritless lawsuits brought against a person for urging a government result or speaking out on an issue of public interest.

CyberSLAPPs are a special category of SLAPP, wherein a defendant brings a meritless – often completely frivolous or groundless – lawsuit against an anonymous speaker, in order to have the court force the speaker to reveal his or her identity. Once an entity learns the identity of an anonymous speaker, it can drop the meritless lawsuit and proceed with other methods of harassment or retaliation. Employers who suspect that employees may be leaking unfavorable information may use this tactic to discover the identity of an online poster, for example.

Butler University’s recent suit against an anonymous blogger who had made comments about the school’s Dean and other Faculty appears to be a paradigmatic CyberSLAPP. The blog, TrueBU, commented on various happenings at the school. In December, 2008, the blog’s author commented on what he perceived to be the unfair dismissal of a member of the faculty. Just before the New Year, the blog was taken down after the student running it received an email to his anonymous account from the university’s lawyer noting that the University was bringing a suit against him.

In January of 2009, the school filed a libel suit, which MediaPost notes appeared to be based on statements that were all a matter of opinion or hyperbole – neither of which are actionable for defamation. But, as part of the lawsuit, the Court ordered the poster’s name revealed. In June 2009 Butler learned that the poster was a student named Jess Zimmerman. Butler then attempted to convince Zimmerman to agree to some sort of internal sanction. Zimmerman refused — the school said in a statement that he “maintained that no sanctions were warranted” — prompting Butler to file a disciplinary proceeding against her in October 2009. Immediately after filing the disciplinary complaint, the University sought to withdraw its libel suit from the courts.

The Butler CyberSLAPP illustrates the need for protection for anonymous speech. Those who speak out anonymously about issues of public interest should not be dragged through the court room on meritless allegations. Nor should they have their identity revealed and be susceptible to private retaliation for speech that is beneficial to the public. The Citizen Participation Act protects anonymous speech by requiring a plaintiff to show that their lawsuit has a minimum level of merit before a court will unmask the identity of an anonymous speaker.

For an excellent collection of links and Butler University’s complaint, see the Citizen Media Law Project’s on the suit. For a great summary of the case and an update, see Inside Higher Ed.

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