When most people think of the First Amendment, they think of the right to free speech. However, the First Amendment does not just protect free speech, it protects all civic engagement. The purpose of the First Amendment is to ensure that citizens have an active voice in our government. The First Amendment is not just a right to free speech, but a right to public participation.
That right in Pennsylvania is currently in jeopardy thanks to SLAPP suits (strategic lawsuits against public participation).
Ideally, Congress would pass uniform anti-SLAPP legislation so citizens in all 50 states enjoy the right to public participation. But until that happens, Pennsylvania desperately needs an anti-SLAPP statute because what we have on the books currently is not enough. Every citizen should be able to participate in our government, perhaps through blogging or civic activism, without having to worry about being served with a frivolous lawsuit.
Below are my thoughts on why we need it, and what it would look like…
What exactly is a “SLAPP suit”?
SLAPP suits typically work like this: a censorious thug sues people for saying stuff that is hurtful but true, because they want the speech removed – even though there is no legitimate basis for a lawsuit. The lawsuit is meant to quiet the speech, using the expense of the court system and costly legal fees.
For instance, some of you are familiar with Joseph Rakofsky, who is the SLAPP poster boy. You may recall that Joseph Rakofsky, very stupidly, decided to make a murder case his first trial. The trial judge questioned Rakofsky’s competence on the record and then declared a mistrial. The Washington Post picked up the story and wrote about it. When the legal blogosphere wrote about Rakofsky, many of whom were outraged that a baby lawyer would be so callous and cavalier, Rakofsky turned around and sued the internet in a New York state court, even though most of the defendants had no connections to New York, and what they wrote was constitutionally protected free speech.
Although the Rakofsky lawsuit was ridiculous, the tactic worked to some extent. For example, attorney Lori D. Palmieri actually settled with Rakofsky. She even wrote a blog post and apologized to him. The rest of the defendants were stuck paying attorney’s fees for almost two years because of the way Rakofsky handled the suit.
Even though Rakofsky’s suit had no merit, it was just dismissed last week after about two years of litigation. However, the court declined to sanction Rakofsky, or even punish him. (presumably because of how badly he was beat up in the media).
Sadly, settlement and removal of the speech, even speech that is not defamatory, makes financial sense because under the “American Rule“, litigants have to pay their own counsel fees. This means if you win a SLAPP suit, congrats. You are no longer a defendant, and you’re stuck with a large legal bill for fighting it. You probably had to sit through depositions, your emails were probably parsed through, and you spent a year or two of your life dealing with litigation, which is punitive in and of itself. Free speech comes with a high price tag.
That said, not every defamation lawsuit is appropriate for a SLAPP motion. Take for example the $250,000 judgment BullyVille‘s founder, James McGibney, recently obtained against Hunter Moore. Moore used his Twitter account to falsely accuse McGibney of being a pedophile, possessing child pornography, and threatening to rape McGibney’s wife. A SLAPP motion would have been entirely inappropriate in this case, since McGibney established that Moore made false statements about him, which damaged his reputation. First Amendment attorney Marc Randazza represented McGibney, which was notable, because Randazza is more famous for defending defamation lawsuits.
What Pennsylvania needs is an anti-SLAPP statue that redresses frivolous lawsuits meant to chill free speech, while still allowing valid defamation and abuse of process claims to make it into the courthouse.
Do SLAPP lawsuits just affect bloggers and journalists?
SLAPP suits arise is other contexts than just blogging, and can affect just about any form of civic participation. For instance, this week the need for an anti-SLAPP statute hit close to home. The Old City Civic Association (“OCCA”) recently disbanded due to several lawsuits which made carrying insurance too expensive. This happened because developers sued a civic association out of existence for exercising their First Amendment right to public participation.
By way of background, the Philadelphia Zoning essentially works like this: neighborhoods in Philadelphia have what is called an “RCO” meaning “registered community organization.” Developers who want a variance must, under the new Philadelphia Zoning Code, meet with the RCO in order to determine how the community feels about the project. This is because part of obtaining a variance is demonstrating that the proposal will not be detrimental to the public interest. Developers or residents who feel they are being treated unfairly by the RCO will often file a lawsuit against the RCO. See, e.g. Vurimindi v. City of Philadelphia, et. al., in which the 3rd Circuit held that the District Court properly denied the plaintiff leave to file amend his complaint against several RCOs and individuals, after being given several opportunities to state a valid claim.
RCOs are usually comprised of unpaid citizens who want to have a voice in what is build in their neighborhoods. With no insurance, any person who serves on the board of directors or on the zoning committee risks getting sued individually and incurring a significant amount in legal fees. This means that anyone who does not risk having to defend a lawsuit against them will probably not want to sit on an RCO.
A strong anti-SLAPP statute needs to protect other forms of participation, including civic engagement, like the engagement RCOs engage in.
Why does Pennsylvania need an anti-SLAPP statute?
The litigation process itself is punitive. If a a lawsuit gets passed the pleadings stage, the participants are opened up to the civil discovery process. This means your private emails, Facebook pages, Twitter account, bank statements, and just about every other aspect of your life is subject to scrutiny. The discovery process, in addition to being incredibly invasive, is also very expensive. One deposition transcript alone can cost about $800, in addition to the lawyer fees.
Anti-SLAPP statutes are meant to prohibit this by limiting the discovery process, screening cases for frivolity at the outset, and imposing legal fees on the plaintiff if the lawsuit is found to be frivolous or simply trying to chill a person’s First Amendment rights.
A sensible anti-SLAPP statute will (1) screen lawsuits involving public participation for frivolity; (2) limit the discovery process until a court has determined the suit has merit and not just filed to chill free speech; and (3) will award costs, fees, and other relief to the prevailing party of an anti-SLAPP motion; and (4) discourage frivolous anti-SLAPP motions from being filed.
What laws do we currently have in Pennsylvania to protect against SLAPP lawsuits?
Pennsylvania has a narrow anti–SLAPP statute found at 27 Pa. Cons. Stat. §§ 7707, 8301-05. The statute only applies to those petitioning the government over environmental issues. It does not apply to other frivolous or SLAPP litigation.
The Pennsylvania State House is currently considering additional protections under this statute in House Bill 1286. The proposed amendment carves out immunity for:
A person who acts in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of Pennsylvania in connection with enforcement or implementation of law or regulation related to an issue in the public interest shall be immune from civil liability in any action except where the communication to the government agency is not genuinely aimed at procuring a favorable governmental action, result or outcome.
From there, discovery is stayed until a court determines whether or not the case is frivolous, and can award attorney’s fees to the prevailing party.
Unfortunately, the proposed bill does not go nearly far enough. For example, it would not address any of the SLAPP suits I mentioned above, since none of the defendants were acting “in connection with enforcement or implementation of law or regulation related to an issue in the public interest.”
In my view, the definition should be broader like in Nevada or California. Nevada’s proposed anti-SLAPP statute protects “a good faith communication in furtherance of the right to petition, or the right to free speech in direct connection with an issue of public concern”. California’s anti-SLAPP statute covers any lawsuit involving a “person’s right of petition or free speech under the United States Constitution or the California Constitution”. However, as described more in detail below, an anti-SLAPP motion should also penalize a defendant who files one frivolously.
What about the Dragonetti Act? Isn’t that enough?
Pennsylvania also has the “Dragonetti Act”, 42 Pa.C.S.A. § 8351(a) which reads as follows:
A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
The proceedings have terminated in favor of the person against whom they are brought.
While the Dragonetti Act might seem like a venue to combat SLAPP suits, it really isn’t. For instance, my colleague Matthew Weisberg, wrote that a Dragonetti Act suit be applicable in frivolous defamation actions because: “[w]hile one could imagine a so-called SLAPP (strategic lawsuit against public participation) defamation action as evidencing an improper purpose (to silence by litigation a citizen’s public complaint), or likewise with a vindictive divorce ending in countervailing litigation, it is not so easy to envision many other types of lawsuits being brought for an ulterior purpose.”
However, a critical problem with the Dragonetti Act is that a claim cannot be made until after the prior proceedings have terminated in favor of the party who wishes to proceed with a Dragonetti Act claim. That is, a Dragonetti Act claim is premature if there is still a chance that the original plaintiff might yet prevail at trial or on appeal. In other words, a SLAPP defendant may be dragged through a significant amount of litigation before the claim is ripe.
Further, a Dragonetti successful plaintiff may only recover for:
(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings
(2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings
(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.
(4) Any specific pecuniary loss that has resulted from the proceedings.
(5) Any emotional distress that is caused by the proceedings.
(6) Punitive damages according to law in appropriate cases.
Title 42 Pa. C. S. § 8353
The problem is a Dragonetti plaintiff can only recover fees spent defending the original SLAPP suit – not new fees incurred prosecuting the Dragonetti claim.
The practical implication is that not only does a defendant have to win the underlying SLAPP suit first, which could be very expensive, but they then have to prosecute another separate lawsuit which will incur more fees.
For most, the cost of two lawsuits just isn’t worth it.
What kind of anti-SLAPP statute makes the most sense?
As it currently stands, many states have many different laws discussing SLAPP suits. For example, California and Oregon have some of the best-known and best-tested statutes in the nation. These statutes stay other proceedings, preventing costly discovery, and entitle aprevailing anti-SLAPP defendant to costs and attorney’s fees.
Nevada is currently looking at Bill 286, which would provide that:
If an action is brought against a person based upon a good faith communication in furtherance of the right to petition, or the right to free speech in direct connection with an issue of public concern:
(a) The person against whom the action is brought may file a special motion to dismiss; and
(b) The Attorney General or the chief legal officer or attorney of a political subdivision of this State may defend or otherwise support the person against whom the action is brought. …
3. If a special motion to dismiss is filed pursuant to subsection 2, the court shall:
(a) Determine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern;
(b) If the court determines that the moving party has met the burden pursuant to paragraph (a), determine whether the plaintiff has established by clear and convincing evidence a probability of prevailing on the claim;
In terms of its scope, this law would protect both bloggers and citizens engaged in civic participation.
Procedurally, court has to make a preliminary determination of whether the lawsuit has any merit before allowing it to go forward. The state also has to appoint lawyers if the matter is of public concern. If the motion is granted, and the court finds that the suit has no merit:
(b) The court shall award, in addition to reasonable costs and attorney’s fees awarded pursuant to paragraph (a), the amount of $10,000 to the person against whom the action was brought.
The statue also protects plaintiffs with legitimate gripes, too. If the court determines that the SLAPP motion was frivolous or vexatious, the plaintiff is entitled to $10,000 and attorney’s fees from the defendant.
Such a statute is evenhanded to both plaintiffs and defendants, and will limit filing special SLAPP motions except in instances where it is warranted.
In my opinion, this approach makes the most sense. I had a conversation with Max Kennerly last week, where he correctly pointed out that plaintiffs still need to be able to get in the courthouse if their suit is meritorious. I agree with him.
Nevada’s proposed anti-SLAPP statute protects the rights of bloggers and those involved in civic participation by closing the discovery process early. However, if a frivolous anti-SLAPP motion is filed, it also punishes the defendant for filing one. This is fair to both plaintiff’s and defendants. I think it is the best of both worlds.
The Pennsylvania legislature ought to look to Nevada’s proposed anti-SLAPP legislation and adopt something similar. Right now residents of the Commonwealth have very little protection against SLAPP suits, which is a travesty to the right of public participation.