On May 13, 2015, The SPEAK FREE ACT of 2015, H.R. 2034, was introduced in the House of Representatives. The SPEAK FREE ACT is intended "to create a special motion to dismiss strategic lawsuits against public participation (SLAPP suits)." This Bill was introduced in Congress less than a month after the Court in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015), ruled that the D.C. Anti-SLAPP Act, a statute designed to make it more difficult (some would argue impossible) to go to trial against a powerful media defendant in a defamation case, cannot be applied in Federal Court. This decision was a significant blow to the powerful media interests in the U.S. - what could be called "Big Media." Every major media defendant in the country (27 in all) banded together to file as amici curiae in support of the media defendants against Mr. Abbas's position that he should be entitled to his day in court under the federal rules of civil procedure. The decision created a conflict in the Circuits that one would have expected Big Media to take to the Supreme Court.
Instead, the Media shifted its efforts to supporting The SPEAK FREE ACT hoping to accomplish through federal legislation what a Supreme Court decision could not-namely, giving it the same protections in every state in the Union that were intended for average Americans exercising their First Amendment rights. SLAPP suits are lawsuits used to silence and harass critics by forcing them to spend time and money to defend meritless suits. SLAPP filers don't go to court to seek justice. They are intended to intimidate a target with limited or no financial or other resources to resist. The intended beneficiaries of the legislation potentially include every American from, for example, consumers reviewing the services of a merchant online to citizens speaking out against a development in their community. The Internet age has encouraged and grown citizen participation in democracy through self-publishing, citizen journalism and other forms of speech online. In the internet age, the protections sought by the legislation are timely and important. But the question is whether the major media companies and interests should be included or are they an unintended beneficiary of legislation that gives them perhaps the biggest card yet in their already very stacked deck.
The District of Columbia's anti-SLAPP Act and the Abbas case illustrate the point. The D.C. Council passed the anti-SLAPP Act in response to what it recognized as a growing "litigation phenomenon": "Americans are being sued for speaking out politically. The targets are typically not extremists or experienced activists, but normal, middle-class and blue-collar Americans, many on their first venture into the world of government decision making. In an effort to protect the kind of grassroots activism that should be hailed in our democracy, the Act purports to enable a defendant to more expeditiously and more equitably dispense with meritless suits. Anti-SLAPP statutes are an illustration of well-meaning concepts embodied in legislation that protects everyone but its intended beneficiaries. SLAPP is an acronym for "strategic lawsuits against public participation (SLAPP suits)."
The media defendants in Abbas are not the kind of grassroots activists contemplated by the Act. The major thrust of the amici curiae filing by the major media defendants was that anti-SLAPP statutes should apply in federal court to avoid forum shopping. The implied premise of this argument is that federal procedure and the federal judiciary are not up to the task of dismissing defamation cases on the pleadings. Mr. Abbas argued that just the opposite was true, and the D.C. Circuit Court of Appeals proved that to be the case by dismissing his case (after carefully considering it), not under the Anti-SLAPP statute, but under FRCP 12(b)(6).
In Abbas, the D.C. Circuit framed the issue in this way:
...the D.C. Anti-SLAPP Act establishes the circumstances under which a court must dismiss a plaintiff's claim before trial-namely, when the court concludes that the plaintiff does not have a likelihood of success on the merits...[the] Federal Rules answer that question differently: They do not require a plaintiff to show a likelihood of success on the merits. Id. at 1333-34.
As the Court observed, the D.C. Anti-SLAPP Act "conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial..." (Id. at 1334) and "[p]ut simply, the D.C. Anti-SLAPP Act's likelihood of success standard is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56." Id. at 1335. Because of these significant differences from the Federal Rules, the Circuit Court held that the D.C. Anti-SLAPP Act could not be applied in Federal Court.
The SPEAK FREE ACT provides that the claim of a plaintiff alleging defamation in any court, state or federal, including the District of Columbia, may be "dismissed with prejudice, unless the [plaintiff] demonstrates that the claim is likely to succeed on the merits." It also substantially limits discovery and may permit the recovery of attorney's fees from the plaintiff.
While these protections are important for average Americans, the same cannot be said when applied to the major media companies that not only have tremendous financial clout but also have tremendous influence by virtue of their preeminent position and the scope of their broadcast capabilities.
In Abbas v. Foreign Policy Grp., LLC, the District Court had dismissed Plaintiff's claim based on the D.C. Anti-SLAPP Act, before Defendants answered the Complaint and before any discovery, based on over 200 pages of material outside of the pleadings (primarily news articles) submitted by Defendants. Based largely on the news articles, the District Court concluded that Mr. Abbas was a limited purpose public figure who had not been defamed and that he had failed to demonstrate that his claim was likely to succeed on the merits. The result under the D.C. Anti-SLAPP Act was that Mr. Abbas was potentially responsible for paying the defendants' attorneys' fees in making the dismissal motions--a number which could reach hundreds of thousands of dollars, even for just the pre-answer motions, given the nature of the defense teams routinely hired by major media defendants.
Since Abbas, the media has portrayed the decision as an "outlier" creating a conflict with the First, Fifth and Ninth Circuits. In fact, the Abbasdecision may presage a shift in opinion by the Circuits. In Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013), Chief Judge Kozinski, in a concurring opinion, strongly advocated against applying anti-SLAPPs in federal court. He stated that he believed the Ninth Circuit's earlier Newsham decision was a "big mistake" and two other circuits had "foolishly followed it" (the First in Godin and the Fifth in Henry). Big Media may have seen that the tide was starting to shift against it with the Abbas decision.
Big Media has important protections under the First Amendment and the many cases strengthening and broadening the scope of its protection. The values embodied in that protection and others in the Constitution are diminished by statutes that permit the pre-answer dismissal of defamation actions and the award of substantial attorneys' fees against those who sue to assert their right to be protected against defamation. The U.S. federal courts have traditionally protected important rights that state courts sometimes were not able to protect. The D.C. Circuit Court of Appeals provided that protection to Mr. Abbas and others like him by its decision in his favor on the anti-SLAPP issue.
We represented Yasser Abbas in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015), where the media sought to keep Mr. Abbas and others like him from suing in federal court by hanging over him the threat of an award of a large amount of attorney's fees if he brought such a suit and lost.
The legal deck has long been stacked against public figures prevailing in actions alleging that irresponsible conduct by major media interests have damaged their reputations. Now, the major media interests have shifted their efforts from the courts to the federal legislature pushing for federal anti-SLAPP legislation in the hope of benefitting from an otherwise well-intentioned anti-SLAPP movement. Big Media hopes to make it even more impossible and punitive for those seeking to repair their damaged reputations. At some point, the courts (and now Congress) should consider whether that effort is at odds with the fundamental right in this country for an individual to be able seek redress in court when they've been wronged. And isn't the reputation of a public figure worth something?
As Warren Buffet famously stated: "It takes 20 years to build a reputation and five minutes to ruin it." At what point has the pendulum swung too far in favor of Big Media that it can ruin an individual's reputation with reckless and even malicious innuendo and the defamed individual is defenseless since, without discovery, it is not possible to establish the recklessness and malice? Congress should seriously consider the argument that Big Media does not need and should not have the protections afforded by anti-SLAPPs, including The SPEAK FREE ACT.