SLAPP Protection Act of 2022 Introduced in Congress!
By Erin Brind'Amour
The Public Participation Project is excited to report that Representative Jamie Raskin has introduced the SLAPP Protection Act of 2022, H.R. 8864, a bill aiming to curtail meritless anti-speech lawsuits at the federal level. This bill advances our organization’s mission to safeguard free speech and petition activity from legal attacks. The SLAPP Protection Act could be tailored to provide even more comprehensive protections to First Amendment advocates, but overall, the draft indicates a very strong commitment to continued speech and petition freedoms.
In his introduction to the bill, Representative Raskin highlights a worrying trend in the United States: corporations embroiling journalists and activists in costly and baseless litigation with the goal of draining these advocates of their resources. Raskin notes that these lawsuits silence critics even when they are eventually dismissed, so it is crucial that Congress swiftly and comprehensively takes action to protect the right to speak freely without being subject to ruinous and retaliatory litigation.
While SLAPPs have existed in our country since at least as early as 1802, the past ten years have been particularly rife with them, including over 152 SLAPPs filed by the fossil fuel industry against its detractors. Earthrights published a policy brief highlighting the particular insidiousness of frivolous suits filed against activists by fossil fuel corporations. Soon after the publication of this brief, Congressman Raskin and other witnesses spoke publicly about SLAPPs at a hearing at the House Oversight Committee in Congress, where Raskin decried the wave of anti-protest laws used against environmental activists and called upon Congress to fill the gaps in existing laws with new anti-SLAPP legislation on the federal level.
This call-to-action took the form of the SLAPP Protection Act, introduced the day after the hearing, which aims to create a special procedure to dismiss SLAPPs while covering the fees incurred by their victims. Raskin’s bill gained early praise from environmental groups for decreasing the unfair costs associated with free speech and activism. Earthrights International, for instance, wrote an analysis which found the bill to be very effective at curtailing SLAPPs without punishing parties who accidentally file a SLAPP-appearing suit, or overstepping the Federal Rules of Civil Procedure. Mike Masnick, a board member at the Public Participation Project, agreed with this analysis, postulating that although the SLAPP Protection Act might be too narrow, and might limit victims’ recovery a little too restrictively, it has many effective features for promoting First Amendment rights and is certainly better than no federal law at all.
The current patchwork of state-based anti-SLAPP laws, which some but not all states have, leaves concerning gaps for aggressive plaintiffs to forum shop, for example, calculating the place to sue where they would have the least amount of anti-SLAPP restrictions. This type of behavior frustrates the intent of state laws and leads to situations where plaintiffs can fight on their chosen terms, no matter how unfair. A federal anti-SLAPP statute would close the loophole that lets retaliatory plaintiffs file state-based claims in jurisdictions with looser First Amendment protections or file federal claims in federal court. Rather than picking the easiest state to win in, plaintiffs would be forced to litigate in federal courts.
The Public Participation Project applauds Representative Raskin for the support this bill demonstrates for journalists, activists and everyday Americans who are victims of SLAPPs. The bill’s background, effects, and special motion mechanism reflect the importance of permanent and nationwide protection for advocates exercising their constitutional rights. Raskin’s bill is a great first step, while some adjustments could create even stronger safeguards for SLAPP victims, including a broader definition of “matter of public concern” and limiting the number of exceptions to only those that are absolutely necessary to ensure there will be no abuse of the statute.
But on a broader level, Raskin’s bill offers a renewed commitment to First Amendment rights which demonstrates a refreshing commonality with our organization’s mission. The bill offers to solidify the importance of speech and petition freedoms by creating a mechanism for defendants in federal court to expeditiously throw out meritless lawsuits before they can drain their victims of financial and emotional resources, as they were designed to do. The Public Participation Project applauds Raskin and his colleagues for their hard work and looks forward to working with to enact federal anti-SLAPP legislation.