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.”
Kyl's proposal would allow such lawsuits to be moved to federal courts if the defendant so desires, noting that the federal-defense-based removal authorized by the Free Press Act is "well within Congress's Constitutional authority."
And while Kyl himself spoke in generalities regarding the FPA, the Gates of Vienna blog illuminated one of the more currently germane reasons for combating the strategy referred to as "lawfare." "Islam can never gain a significant toehold in the United States unless it can somehow prevent the unfettered discussion of sharia," reveals the August 18th posting. "Researchers who delve into Islamic law and its practical effects tend to observe that sharia runs entirely contrary to the United States Constitution, the Universal Declaration of Human Rights, and the laws and constitutions of all European countries as well as the EU. To point this fact out in public is to thoroughly discredit Islamic doctrine."
The blog further notes the Islamists' strategy for counteracting that reality. "In order to suppress the discussion of such matters, the agents of the Muslim Brotherhood must make 'discrediting Islamic doctrine' the equivalent of 'defaming a religion,'" and toward that end they will file "frivolous lawsuits against those who criticize Islam," financed by a "virtually bottomless well of petrodollars" forcing the targets of such lawsuits "to cave in quickly and settle out of court, thus ceding just a little more legal territory to the rule of sharia."
If the FPA passes, those targeted would have the opportunity to move for a summary dismissal of the suit. The law would force the plaintiff to demonstrate that the suit is substantive. If the plaintiff fails to do so, the suit would be dismissed and the plaintiff would be required to pay the defendant's costs.
Such a law ought to be unnecessary, given the specific freedoms outlined in the Constitution's First Amendment. But America is long past the point where the sanctity of that document can compete with the substantial numbers of attorneys and their clients willing to game the system in order to silence legitimate critics and whistleblowers. The de facto ability to threaten truth-tellers with financial catastrophe is the ability to threaten the truth itself.
Yet it remains to be seen if Kyl's bill will pass. Democrats currently control the Senate, and lawyers and law firm industries have long aligned themselves with the Democratic Party, having contributed far more to their campaign coffers than those of Republicans for more than a decade. In the 2008 presidential election cycle, the legal industry contributed a whopping $234 million to federal political candidates and interests. Seventy-six percent of those contributions went to Democratic candidates and committees. Any statute that even hints at instituting a "loser pays" element in american jurisprudence is utterly anathema to the industry. Thus, Kyl's proposal is likely to come down to a simple equation: will Democrats do what is best for the nation as a whole -- or what is best for one of their favored constituencies?
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