Since the 1960s, courts and legislatures have erected various barriers to defamation lawsuits. Much of what we do at LATE NIGHT LAW is to strategize around these barriers for our clients who have been unfairly attacked in the media.
Obviously, there are many forms of unprotected speech: child porn, fraud, incitement to violence, criminal threats of various kinds, and false advertising, to name just a few. In theory, defamation is also an unprotected form of speech, to which civil liability attaches. But in practice, various statutory and common law hurdles put in place by courts and legislatures disincentivize the enforcement of defamation law.
One of these hurdles is so-called “anti-SLAPP” legislation. These are state laws that allow defendants who claim they were sued for First Amendment activities to bring an expedited motion to dismiss, early in a defamation case. Most of these laws include a fee-shifting provision, enabling successful defendants to collect their attorney fees from the plaintiff. Ironically, these laws violate the First Amendment.
Both Washington state and New Mexico have anti-SLAPP laws, although Washington’s is stronger than New Mexico’s. In Washington state, the anti-SLAPP statute applies to nearly any speech on a topic of public concern. RCW 4.24.525. However, in New Mexico, the anti-SLAPP statute only applies to speech or conduct “made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a tribunal or decision-making body of any political subdivision of the state.” N.M.S.A. § 38-2-9.1.
The SLAPP concept was first invented by Professors George Pring and Penelope Canan (a law professor and a sociologist, respectively) in a pair of academic papers published in 1989. Professors Pring and Canan claimed to have uncovered a significant new phenomenon of lawsuits (mostly for defamation) filed by powerful political and financial interests against journalists and community activists, to silence dissent. Professors Pring and Canan coined a phrase to describe this supposed phenomenon: “strategic lawsuits against public participation,” or SLAPPs.
The only problem was that this purported new phenomenon, like so many proposals floated in academic literature, was largely fanciful, contrived more for the sake of the authors’ prestige and moral rectitude than to address any real problem. As Professor Pring wrote,
We collected and studied 228 SLAPPs. Our selection criteria were four in number. To qualify as a SLAPP, the case had to be: 1. a civil complaint or counterclaim… 2. filed against non-governmental individuals [or] groups, 3. because of their communications to a government body, official, or the electorate, 4. on an issue of some public interest or concern.
There are a number of glaring problems with this methodology. First, the inclusion of counterclaims in the survey sample is highly misleading, because a counterclaim does not initiate a lawsuit. Thus, it cannot really be said that someone who brings a counterclaim has initiated litigation in order to repress free speech. Second, the small sample size of only 228 lawsuits is also problematic: millions of lawsuits are filed every year in state and federal courts, and this was certainly true in 1989. Third, the criteria used to define these purported “SLAPPs” is extremely broad, encompassing any lawsuit filed “because of communications to the electorate on an issue of some public interest or concern,” which of course would include a huge variety of scenarios, and almost any publication.
In the years since Professors Pring and Canan minted the SLAPP concept, most states have adopted anti-SLAPP legislation. These laws create unfair barriers to defamation plaintiffs. There are several false assumptions that undergird the entire SLAPP concept:
First, there is an assumption that defamation lawsuits are a threat to free speech. But defamation is not protected speech. It does nothing to further healthy public discourse and the search for truth. The framers of the First Amendment were well aware of the common law of defamation and had no intent to limit it. Indeed, the Supreme Court imposed no constitutional limitations on common law defamation suits until the 1960s.
Second, there is an assumption that defamation claims are uniquely abusive and vindictive. This is preposterous: no lawsuit in the world is filed without vindictive sentiment on the part of the plaintiff, and every type of tort claim is susceptible of abuse and misapplication. That’s just the reality of civil litigation, and it’s why motions to dismiss can always be brought early in any lawsuit. Promoters of the SLAPP concept lament that defamation claims are expensive to defend, but all lawsuits are expensive to defend, and injury to reputation is no less harmful to the victim than many other forms of injury redressable at law.
Third, there is an assumption that without anti-SLAPP protection, meritless cases may overburden the courts. But robust civil liability for defamation encourages truthfulness in public discourse, and discourages dishonesty. If anything, the burden that speech-based tort claims impose on busy courts can be eased by disincentivizing defamation, not by making it easier to get away with—especially in the era of social media.
An additional problem with anti-SLAPP laws is that they make defamation unfairly difficult to prove. The Supreme Court has held that when a defamation plaintiff is a public figure, he must prove actual malice, meaning he must show that there was an intentional lie, or a reckless disregard for the truth. This standard is difficult to satisfy, and anti-SLAPP statutes make it even harder. When a defendant files an anti-SLAPP motion, the plaintiff then must show a probability of success on the merits before discovery can commence. But because actual malice refers to the defendant’s mental state, it often requires discovery to prove.
By erecting unreasonable barriers to liability, anti-SLAPP laws encourage defamation, which is more rampant than ever in the era of social media, and has no connection to free speech, the search for truth, or a healthy public discourse.
The common law of defamation goes back centuries, and it recognizes the right to enjoy one’s hard-earned reputation, free from dishonest and unjustified attacks. We all know that the First Amendment protects freedom of speech, and freedom of the press. But the First Amendment also protects the right to petition the government for relief when you are wronged. Here is the full text:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That last part—the right “to petition the Government for a redress of grievances,” includes the right to bring a lawsuit when someone defames you. In attempting to promote the free speech of defamation defendants, anti-SLAPP statutes often infringe on the plaintiff’s constitutional rights, including the right to a jury, due process, equal protection, and ironically, the right to petition. The bottom line is that anti-SLAPP laws encourage defamation, which is poisonous to the very purpose of free speech protections—namely, the search for truth through healthy public discourse.
If you have a defamation matter in New Mexico, or a defamation matter in the state of Washington, contact LATE NIGHT LAW, or call for a free initial consultation at (505) 225-2623.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.