Standing Up for Independent Journalists and Free Speech

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On August 2nd, Senator Jon Kyl (R-AZ) introduced the Free Press Act of 2012 (FPA), aimed at protecting the First Amendment rights of journalists and internet service providers (ISPs) against “Strategic Lawsuits Against Public Participation” (SLAPPs). Kyl explained his rationale when he introduced the bill. “The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues,” Kyl told his Senate colleagues. “Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.”

Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press (RCFP), explains the concerns that the bill attempts to address. “Reporters–and particularly the newer breed of journalists who are reporting on their own blog or web site and do not have the backing of big publishing or broadcasting companies–are constantly the target of lawsuits that really are designed to do nothing more than shut them up,” he revealed.

The Citizen Media Law Project (CMLP) reports that 27 states and the District of Columbia have enacted anti-SLAPP statutes, but their effectiveness varies, largely due to the nature of a U.S. legal system that gives the benefit of the doubt to the party bringing suit until the fact-finding stage. Even if the defendant prevails at that juncture, he or she is not usually entitled to recover attorney’s fees. At their website the RCFP cites the case of Baltimore journalist Adam Meister, who was sued for $21 million by City Councilwoman Belinda Conaway. Conaway claimed Meister had defamed her and caused her emotional distress with a post on examiner.com, noting that she lived outside the city while representing a district within it, violating the law. She eventually dropped the suit (Meister had found a sworn statement signed by Conaway and homestead property tax exemption records that identified a Randallstown, MD, home as her principal residence)–but Meister was still saddled with court costs.

The chilling effect of such suits, especially for those writers without the resources of a large news organization behind them, is obvious. “A single frivolous lawsuit can cost tens of thousands of dollars just to get dismissed,” Leslie said, “and if it goes to trial instead, the costs are overwhelming. Anti-SLAPP laws have proven their effectiveness at the state level repeatedly, and a federal law would help out even more,” he added.

And lest anyone think such frivolous suits target professional writers only, think again. The CMLP notes that virtually anyone can be SLAPPed for something as innocuous as posting a blog entry, posting a comment on someone’s blog entry, writing a letter to the editor of a newspaper, testifying before a legislature, reporting on official misconduct, or even circulating a petition. The CMLP further notes that SLAPPs are used by a variety of entities to silence anyone who may be opposed to their actions.

SLAPP suits typically involve four categories: defamation, interference with a contract or other business relationship, intentional infliction of emotional distress, and conspiracy–or any combination of the four.

Meister expressed the feelings typically associated with being sued. “Once I was served, I really had to be careful, because I knew it was real. I had to be careful about what I wrote. I realized that was part of what they were trying to do here. I just kept thinking, ‘I have to be quiet.’” He is currently petitioning Maryland General Assembly to amend the state anti-SLAPP statute. “A SLAPP suit is a desperate attempt by a powerful person to silence a dissenting voice,” he contended. “It is an abuse of the legal system that should not go unpunished. There should be meaningful penalties for SLAPP suits in Maryland so others do not attempt to chill free speech in this way in the future.”

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  • Chezwick

    It's important to keep in mind folks, the 'Trial Lawyers of America' are one of the largest donors to the Democratic Party. It's also important to keep in mind that litigation (and the fear of litigation) is as devastating to our economic system as other sociological evils like excessive taxation and regulation. Add that to the threats to free speech that Arnold adroitly points out, and we have one serious problem on our hands.

    The answer is tort reform….and caps on settlements for "pain and suffering". It should be in the Republican platform….and it should be carefully explained to every American, how litigation is driving up the cost of goods and services, how it is paralyzing good government and common sense (e.g., police shutting down a 9-year old's lemonade stand), and how – in its most venal form – it is just another form of wealth re-distribution.

  • clarespark

    I hadn't thought about my own vulnerability before. See latest blog: http://clarespark.com/2012/08/26/democratic-party…. "Democratic Party talking points 2012." Imagine the loss of the ability to refute these monstrous lies and other misconceptions.

  • http://tarandfeathersusa.wordpress.com/ Iratus Vulgas

    Double standard once again. We know who these lawsuits target. Astute conservatives have learned that they have to be smarter, stronger, and better focused than their liberal counterparts. While I think a good percentage of rank-and-file conservatives have honed their political chops to a fine edge, the GOP establishment continues to be behind the learning curve.

  • pagegl

    We need to institute laws such that if a defendant can show that a suit brought against him is frivilous the plaintiff, or preferably the plaintiff's lawyer, should have to pay the defendant's legal costs. Given that there is no cost to a trial lawyer, except his time, and possibly a reward (settlement to make a harrassive suit go away), there is no reason for the trial lawyer not to file suit. If, however, there was some cost for bringing an unwarranted suit against someone we just might see less idiocy ini our courts.

  • NAHALKIDES

    Ahlert's question is easy to answer: the Democrat Party is long past the point where what was in the public interest figured even remotely in its calculations. It will do what is best to enhance its own power, damage to the economy, the health care system, or freedom of speech notwithstanding.

  • Schlomotion

    I think it's a great idea to eliminate the weapon of frivolous lawsuit from the arsenals of free speech opponents. This should put an end to ALL extremist groups trying to sue an official or member of a school for merely writing a column or speaking his mind.

  • Adam Meister

    My blog is still at BaltimoreHourly.com The councilwoman lost the election by the way!