It’s boom time for bullshit claims against media organizations.
Congressman Devin Nunes, the California Republican, is suing McClatchy for libel and demanding $150 million, in what his complaint alleges is “a case about character assassination and a public company that weaponized its powerful pen and used it as a terrible sword.”
Joe Arpaio, the demagogic former sheriff of Maricopa County, Arizona, is suing The New York Times for libel, demanding $147.5 million, over an opinion piece that Arpaio said was “carefully and maliciously calculated to damage” his reputation—as if someone other than Joe Arpaio is capable of harming Joe Arpaio’s reputation.
Shopping mall enthusiast Roy Moore is suing a variety of people for libel, among them Sacha Baron Cohen and Showtime—for Moore’s appearance on “Who Is America?” The complaint alleges the show “falsely painted, portrayed, mocked and with malice defamed … Moore as a sex offender, which he is not.”
Donald Trump himself, very much of the school that any coverage less than fawning is an outrage, has threatened to sue a host of media organizations, including The Daily Beast, The Washington Post, and the AP. He has also pledged to change libel law to make such suits easier. (Although Trump has never followed through, he would not have won if he had.)
Add, too, wealthy third-party litigation financiers. The obvious example is Peter Thiel and Gawker, though it’s not the only one. There’s also the 2013 libel lawsuit filed by billionaire Frank VanderSloot against Mother Jones, over critical coverage of him and his company Melaleuca. The magazine spent $2 million defending itself before prevailing on summary judgment in 2015. Satisfied with the outcome of the case, despite its dismissal, VanderSloot announced later he would create a fund to finance similar litigation by “people who have been defamed by Mother Jones … or other liberal press because of their conservative values.”
These suits seem less about winning than about exacting revenge on publishers for stories the plaintiffs didn’t like. They show why we need stronger anti-SLAPP protections at the state and federal levels.
SLAPP stands for ‘strategic lawsuit against public participation’, and they often come in the form of libel or privacy claims. Plaintiffs generally don’t file them to win on their merits, a feat that First Amendment law makes difficult in most cases involving newsworthy expression. They are filed to restrain protected expression or simply as an act of vengeance.
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Anti-SLAPP laws provide a mechanism for courts to dismiss a SLAPP early, thus averting the substantial legal fees and emotional stress that come with litigation. The problem is that anti-SLAPP measures are available in just 31 states, plus DC and Guam, and their protections vary significantly from place to place. And there is no federal anti-SLAPP law. This patchwork of protections does not serve the First Amendment well.
Nunes, of California, filed his complaint in Virginia against Sacramento-based McClatchy over a story in the Fresno Bee. Why? Probably because California has one of the broadest anti-SLAPP laws in the nation, and Virginia has one of the weakest. Meanwhile, The New York Times is filing against Arpaio a special motion under the DC anti-SLAPP law. And VanderSloot filed his suit in Idaho, which has no anti-SLAPP law. Mother Jones had no special tool to get the suit quickly and cheaply dismissed. It survived longer there than it would have in a state like California.
First Amendment law, overall, is in good shape, and is protective of speech about matters of public concern. But SLAPPs are costly to defend even if the news outlet ultimately wins, and at the state and local levels, legal resources are especially strained. A Knight study in 2016 reported that 65 percent of US newspaper editors said the press is weaker than it was 10 years ago.
SLAPPs threaten free expression and clog up the courts. They feed off of imbalances in resources and power.
This is dangerous in the SLAPP context because of the non-economic motives at play in many cases. The plaintiff typically is not trying to remedy a quantifiable economic loss; rather, he is trying to retaliate or send a message, at whatever cost and whether or not he wins.
This is also dangerous because networked communication has increased exponentially the number of people who publish content and has made a lot of it available across state lines. State anti-SLAPP laws do not apply to claims in federal court based on federal law, and federal courts disagree about whether they should apply state anti-SLAPP laws when they hear cases based on state law under diversity jurisdiction (i.e., when the plaintiffs and defendants are from different states).
All of which means: We need a federal anti-SLAPP law to fill that hole and resolve that disagreement, and we need stronger and more consistent state protections. (This assumes the federal law would not authorize the transfer of cases brought in state court to federal court.) The ideal measures would define a SLAPP somewhat broadly: as a claim arising from expression, or conduct in furtherance of expression, about a matter of public concern or in connection with an official proceeding. “Matter of public concern” would include economic, environmental, health, safety, governmental, and marketplace issues. This approach would be similar to that of the last federal anti-SLAPP bill, which was introduced in Congress in 2015 but didn’t make it out of committee.
Procedurally, the ideal measures would (1) allow the defendant to bring an early motion to strike the complaint and, if the expression involved a matter of public concern, require the plaintiff to show a likelihood of success on the merits; (2) compel the plaintiff to present evidence supporting every element of the claim; (3) pause discovery pending resolution of the motion to strike, unless the plaintiff can show that targeted discovery is necessary; and (4) provide mandatory fee awards to the prevailing defendant. There should also be an exception preventing a defendant from filing the motion to strike if the plaintiff brought the claim at issue in the public interest.
These protections are critical in our current political and cultural moment.
SLAPPs threaten free expression and clog up the courts. They feed off of imbalances in resources and power. Stronger and more consistent anti-SLAPP measures, at the state and federal levels, would prevent against time and resource loss by quickly disposing of any claims inspired by those of Nunes, Arpaio, Moore, and VanderSloot. Comprehensive anti-SLAPP laws would also ensure that First Amendment values are respected wherever a defendant is dragged into court.
Though Nunes, Arpaio, and Moore will not prevail on the merits of their claims, which are somewhere between baseless and preposterous, their suits stand to chill expression about newsworthy social and political affairs. That expression should be left in the public forum where it belongs—“against the background of a profound national commitment,” as the Supreme Court held in New York Times Co. v. Sullivan, “to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
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Jonathan Peters and Jared Schroeder are CJR contributors. Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Schroeder is an assistant professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of The Press Clause and Digital Technology’s Fourth Wave.