The Need for H.R. 4364


Yesterday, Rep. Steve Cohen (D-TN), introduced H.R. 4364, the Citizen Participation Act of 2009. The Citizen Participation Act encourages civic engagement and protects against meritless lawsuits brought against those who petition the government or speak out on a public issue. The bill allows someone who is brought to court on a meritless lawsuit arising from his exercise of First Amendment rights to have the lawsuit dismissed, and to recover attorney’s fees.

With so much happening these days: Afghanistan, Guantanamo, Health Care, Jobs, the Climate, and other big happenings in the First Amendment world, including libel tourism and reporter’s shield legislation, so much ado about some meritless lawsuits may seem misplaced.

After all – if the lawsuits in question are meritless, won’t the defendant win? Why are additional protections necessary? And, why do we need a federal law? Aren’t we dealing with state defamation claims here, and won’t a federal law “federalize” state tort law?

Let’s start with the basics. George Pring and Penelope Canan coined the term Strategic Lawsuit Against Public Participation, or “SLAPP,” more than two decades ago, to describe lawsuits that were brought to retaliate against those who exercise their first amendment rights. The quintessential SLAPP is a lawsuit against someone who speaks out about local development or environmental issues.

Since that time, the concept of SLAPP has broadened, as judges, academics and practitioners across the country recognize that lawsuits are an increasingly-used weapon against speech that some people and businesses would rather have silenced. If a group of parents complains about the management of their children’s charter school, the response by the school’s management is to sue the parents for defamation. If a union seeks to have local governments issue resolutions against a food manufacturer, the response of the manufacturer is to sue the union for racketeering and conspiracy. If an upstart website posts information about local real estate deals, and names a law firm doing those deals, the law firm’s response is to sue the website for trademark infringement.

In each case, rather than answer speech with speech, the plaintiff decides that the best way to shut up critics – or in the case of the last example, just keep some doings quiet – is to go to court. What many people and businesses have realized is that a lawsuit is an extremely effective way to silence someone.

After all, if you were a parent who had asked questions about your kids’ school, and you were sued, how would you react the suit? Would you be able to afford an attorney? Would you know how to handle discovery requests and calendaring, and would you be able to take off work to defend yourself? Even meritless lawsuits require a defense. Faced with the task of defending yourself, you might decide to settle. And that settlement might come at the price of your apology, “correction,” or agreement to refrain from bringing up the topic ever again.

H.R. 4364’s Protections are Specially Tailored

H.R. 4364 has several key components. The single most important component is the ability of a defendant who is hit with a SLAPP to recover fees. This is critical, because it allows a defendant who otherwise could not afford an attorney to secure an attorney on a contingency basis. Second, the defendant can bring a special, early motion to dismiss, and while the judge is deciding the motion, neither party can take discovery. These provisions are absolutely key to protecting a defendant. SLAPPs aren’t typical lawsuits; they do their work through the process of litigation itself. Stopping the process and providing counsel is the only way to combat the SLAPP, which is why normal remedies, like a motion to dismiss for failure to state a claim, is inadequate.

The Need for Uniform Protection

Twenty eight states have enacted anti-SLAPP legislation. These laws vary dramatically across the states that have them. The remaining states lack protection, and there is no federal anti-SLAPP law. This disparity in protection encourages forum shopping, and magnifies the chilling effect of SLAPPs by making people uncertain about the level of protection. A blogger in California would normally have that state’s strong anti-SLAPP law as protection, but if a plaintiff can sue the blogger in a state without an anti-SLAPP law, the plaintiff has every incentive to do so. The blogger in California may censor herself for fear of an out-of-state lawsuit, notwithstanding her great protection in her home state.

This is why a uniform federal law to protect First Amendment expression is needed. SLAPPs aren’t just random meritless lawsuits: they are lawsuits that directly impinge upon First Amendment rights. The level of protection for First Amendment rights should be uniform – it should not depend on where a defendant is hauled into court.

It is difficult to quantify the number of SLAPPs that occur each year. This is partly because so many states lack protection, and so many SLAPPs go unrecognized. Even in states with protection, the concept of SLAPP remains relatively niche, and a defendant may settle his lawsuit before an attorney is ever hired. Finally, if you take a look at the example SLAPPs above, you’ll see that not all SLAPPs are brought as defamation claims. If we could just tally up a certain kind of claim, we would have a better idea of how many SLAPPs were being filed, and how they are disposed. But because SLAPPs masquerade as a limitless number of claims, it is very difficult to keep track of them.

But we know anecdotally that SLAPPs happen every day, across the country, in response a huge variety of civic participation. H.R. 4364 would protect against such lawsuits, regardless of where they were brought.

The Relationship between H.R. 4364 and State Law

It is important to note that the Citizen Participation Act provides two tiers of protection. In the first place, it encourages civic engagement by providing qualified immunity for those who petition the government. This means that you are immune from civil liability for good-faith communication with the government, including reporting a crime, testifying to congress about infirmities in your public company’s finances, or reporting environmental regulation violations to the EPA. This qualified immunity is patterned after New York Times v. Sullivan‘s protection for speech about public figures, and essentially applies that level of protection to any communication with the government. This substantive federal right of immunity can be raised as a defense against any civil claim, including a state defamation claim. The First Amendment rights at issue warrant such protection. For cases not involving good faith petitioning activity, however, the Citizen Participation Act leaves state law intact.

In addition to the qualified immunity, the bill provides procedural protections for petitioning activity and speech about an issue of public interest. Any time a defendant is sued, based either on petitioning activity or for having spoken out on an issue on issue of public interest, the defendant can first remove to federal court, and then bring a special motion to dismiss the claim. In order to survive the motion to dismiss, the plaintiff must prove that her case has minimum merit, both legally and factually. The court determines the legal merit by applying the law as it normally would.

So, in a state defamation case, the court is expected to apply state defamation law, as it would under diversity jurisdiction, to determine whether the plaintiff has stated a sufficient legal claim. In other words, the procedural protections provided for in H.R. 4364 do not interfere with existing state law. In fact, the requirement that a plaintiff prove merit under existing law is an elegant solution to the fact that SLAPPs are brought as all kinds of claims. No matter the claim that a plaintiff brings, she must show it has merit if it impinges on another’s First Amendment rights.

Now is the time for H.R. 4364

The events of the past few years highlight the need for more communication about important issues. A more open, searching dialogue about the mortgage industry, for example, is something that we should have welcomed. Financial health, public safety, environmental well-being, national security and government accountability all demand an active, engaged citizenry. Technology now makes it possible for everyone to don the hat of journalist, editor, town crier or anonymous pamphleteer. H.R. 4364 is particularly timely: it protects and encourages critical open dialogue, whether it is had in the town square, on a cable news network, or an online chat room.

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