Senate to Consider Bill Designed to Protect Journalists and ISPs from SLAPP Lawsuits

August 28, 2012
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A Strategic Lawsuit Against Public Participation, better known as a SLAPP lawsuit, is a legal action initiated by a party with the primary purpose of causing its opponent to succumb to the pressures of litigation. Often times, the party filing a SLAPP lawsuit is aware it is likely to lose its case, but files anyway, hoping the mere threat of a costly, resource-consuming legal proceeding will prevent its opponent from continuing whatever activity it has taken issue with.

Importantly, not every inconvenient lawsuit should be considered a SLAPP suit. The term predominately applies to those suits filed specifically to discourage various activities associated with the exercise of the constitutional right to free speech. Journalists, bloggers, authors, filmmakers, political cartoonists, and comic book creators who use their various art forms to comment on matters of public concern are easy prey for corporations that can afford to file frivolous, speech-chilling lawsuits. As defendants against larger and better-funded companies, many victims of SLAPP lawsuits simply fold rather than fight the lawsuit, even if the company suing them is clearly in the wrong and would lose its case in court. SLAPP lawsuits often have a chilling effect on free speech.

Recently, the Electronic Frontier Foundation was successful in defending Matthew Inman, political cartoonist and creator of The Oatmeal, from a SLAPP suit. In Inman’s case, he was being sued by rival humor website, FunnyJunk, for publishing a comic strip criticizing FunnyJunk for republishing The Oatmeal’s cartoons without permission. FunnyJunk ultimately dropped its suit, thanks to a combination of California (where the suit was filed) having a relatively strong anti-SLAPP statute and an outpouring of support from The Oatmeal’s large following. Still, had the lawsuit been filed in a jurisdiction without comprehensive anti-SLAPP protection, Inman would have been forced to decide between fighting a costly legal battle or giving in to pressure from FunnyJunk and removing the allegedly offensive comic strip.

Although the most common SLAPP suits are those filed as defamation actions, SLAPP lawsuits also take the form of intellectual property infringement actions, emotional distress claims, and allegations of interference with contractual or business relationships. Click here to read the CBLDF’s coverage of a situation in which a well-funded entity filed what many believe is a SLAPP lawsuit against a playwright who sought to use copyright protected material to construct a parody of a long-defunct sitcom.

According to the Public Participation Project’s research, 28 states, along with the District of Columbia and U.S. territory of Guam, have already enacted anti-SLAPP legislation. Yet, a large part of the country’s creators and public commentators remain vulnerable to speech-stifling litigation. If passed, the Free Press Act of 2012 will be the first Federal statute to provide uniform, country-wide protection from SLAPP lawsuits, arming free speech proponents with a mechanism for quickly and painlessly dismissing meritless claims without accumulating overly-burdensome attorney’s fees or expending vast amounts of resources.

The Act, as written, leaves unanswered the question of whether fictional works (including most popular comic books) are protected from malicious, speech-chilling lawsuits. Nevertheless, its passage would be a major victory for those creators and political cartoonists who regularly rely on their First Amendment right to comment on matters of public concern.

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Rick Marshall is an attorney working towards a master’s degree in Digital Copyright and Intellectual Property Law at The George Washington University Law School.