July 16, 2020 at 5:00 am ET
These days, we don’t need more reasons to abandon participation in civic life. The right to protest, to make your voice heard, to be a participant in the American experiment is as important as it has ever been.
Doing so involves risk, especially in today’s polarized climate. Those on the front line know this, but they choose to participate anyway. Journalists investigating public figures, whistleblowers bringing corruption to light, and citizen activists rallying in protest all know what they’re up against.
So the prospect of adding a lawsuit to those risks might be the straw that breaks the camel’s back. Rather than face the possibility of losing everything, some might choose to just stay silent.
It’s understandable, but regrettable. Every silenced voice subtracts from the opportunity for progress.
But even bogus defamation lawsuits, known as strategic lawsuits against public participation (SLAPP), can take years and tens — or even hundreds — of thousands of dollars in attorney’s fees to fight.
That’s what the people who file such suits are counting on. They know they don’t need to win the case to win the fight. All they need to do is tie you up in court – or frighten you away from activism altogether.
An example from everyday life illustrates the point.
Kortni Butterton of Nashville isn’t famous. She didn’t get into a loud debate about politics. She didn’t argue in public with a celebrity or an elected official. In a private Facebook group, she simply related an unfavorable opinion about a man she had turned down on a dating app.
That might not seem like a grave matter of public policy. But the implications are enormous for participation in civil life.
Someone in the private group shared her comments with the man she had turned down, and he showed up at her home, pounding on the door, windows and walls. She called the police, but they arrived too late to catch him. The next thing she heard from him was that he had filed a defamation suit against Butterton for her criticism of his Instagram page, for comments she made in her 911 call, even for her testimony in court.
This kind of shotgun approach is emblematic of what SLAPPs are about – outrageous attempts to sue over clearly legal speech in an effort to intimidate.
The good news is that the suit was settled in Butterton’s favor. That outcome was made possible by the recently enacted Tennessee Public Participation Act, designed to protect people against SLAPP suits.
She’s lucky she lives in Tennessee. Progress has been made, but too many states offer few protections against SLAPP suits; 17 states still offer no protections against the pernicious practice, which can reach into any corner of day-to-day life.
Didn’t like the service you got at a local restaurant and said so online? Restaurant owners have threatened defamation suits against customers who say negative things about them on review sites.
Want to speak out against encroaching development in your neighborhood? Developers have sued citizens protesting the use of eminent domain.
Are you a crime victim who wants to tell their story? Even sexual assault victims have been subjected to SLAPP suits in an attempt to silence them from going public with their accusations.
SLAPPs target citizens for using their constitutionally protected free speech rights on issues of public concern, penalizing protest and silencing free speech. Consider Greenpeace’s recent experience in which it was sued unjustifiably in an attempt to silence protests.
With demonstrations against racial injustice taking place in every corner of the country, how many other organizations — along with thousands of individual Americans — could face similar attempts simply for exercising their rights to freedom of speech and assembly?
Well-heeled SLAPP litigants might end up losing but can still inflict considerable damage on those they target, with high court costs and damage to their reputation.
Defendants are often left with a Hobson’s choice: to stay the course and risk a costly court case, or to settle and surrender their free speech rights.
Enacting strong anti-SLAPP measures, as Tennessee did, can preserve individuals’ right of free speech and protect them against these kinds of frivolous, yet insidious, lawsuits.
America benefits from a diverse public square. SLAPP suits make it harder to participate in civic life. Reforms that make it easier for people to express themselves ensure that the right to be heard remains a hallmark of our country and a driver of continued progress.
Billy Easley II is a senior policy analyst at Americans for Prosperity.
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