Utah Supreme Court Ruling Highlights Need for Federal Anti-SLAPP Legislation
A New York court ordered Google to reveal the identity of an anonymous poster who called model Liskula Cohen a “skank” on her blog “Skanks in NYC.” In so ruling the court held that some of the blogger’s statements may rise to the level of defamation, and as such, Cohen had the right to learn the identity of the poster and to bring a lawsuit if she chose. (Cohen did file a lawsuit, which she rapidly dismissed)
The poster, Rosemary Port, is pretty upset that her identity was revealed; she’s even threatened to sue Google for violating her expectation of privacy.
The merits of that potential lawsuit aside, the New York court’s decision to force to Google to unmask the anonymous blogger has many in the blogging world asking questions about the appropriate safeguards for anonymous online speech.
Section Seven of the proposed Citizen Participation in Government and Society Act incorporates a set of safeguards at the federal level; if an anonymous speaker’s identity is subpoenaed, the speaker can make a special motion to quash the subpoena. If the speaker can make a showing that the underlying lawsuit arises from protected speech or petition activity, the burden shifts to the plaintiff and would-be unmasker to demonstrate that the underlying claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. If the plaintiff cannot show that level of merit, the subpoena must be quashed.
The case against Bezzant arose in 1999, when Utah businessman William Jacob published a paid political advertisement flyer in the Citizen, alleging that two candidates for city council in American Fork could not legally serve on the council.
After realizing that the advertisement had been published with no opportunity for response, Bezzant personally paid for an “urgent election notice,” which asserted that the candidates were qualified to hold the office, and which identified Jacob as the publisher of the previous advertisement. The notice was distributed by mail and hand delivery to American Fork residents and published on the paper’s Web site.
The two candidates won their respective offices. Jacob filed a defamation lawsuit against Bezzant, and Bezzant brought a motion to dismiss under Utah’s anti-SLAPP statute. In 2004, a Utah district court cited the law in allowing Bezzant to dismiss the claim. Jacob appealed, and five years later, the Supreme Court ruled that the Utah anti-SLAPP law applies only to claims arising from attempts to influence legislative or executive decision making – and that Bezzant’s urgent election notice does not constitute such an attempt.
However, the Court also affirmed the lower court’s ruling that the claims against Bezzant had no merit, dismissing all of the defamation claims.
Bezzant spent ten years fighting a meritless case brought against him as a result of particularly important speech – that concerning the qualifications of two candidates for public office.
The proposed Citizen Participation in Government and Society Act would protect Bezzant and those like him. The proposed legislation protects “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding,” and any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”
Under the proposed act, the court would have had to rule on his motion to dismiss the claim within seventy five days of the filing of the motion. In Bezzant’s case, Jacob did not respond to the anti-SLAPP motion for a year and half after it had been filed.
Bezzant “won” – but he lost ten years to litigation. In the process, he sold his newspaper, and he may be more hesitant to speak out in the future, even on critical issues, like whether a candidate is qualified to hold the office he or she is seeking. This is exactly this type of speech that should be protected, and a uniform, comprehensive anti-SLAPP statute would ensure that it is protected, no matter where it is made, or where the speaker who makes it is sued.