SLAPP suits (and how to counterpunch them)

The author of the following gave me permission to reprint it in its entirety. It's written in the styling of legal briefings, with occasional pauses for footnotes.  Several bloggers in Texas have been SLAPPed in years passed, with the occasional unfortunate outcome.

There's a Q&A at the end with respect to the recent defamation suit brought -- and won -- by conservative icon David Barton against two Democrats SBOE who ran for the State Board of Education, Rebecca Bell-Metereau and Judy Jennings.

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From holiday yard decorations criticizing a neighbor to Internet restaurant reviews, free speech is under attack in the courts in our increasingly litigious society like never before.  Frivolous lawsuits designed to chill expression of criticism have reached such a fever pitch that 28 states have now adopted “anti-SLAPP” statutes designed to protect speakers from such suits, and a new national statute has been proposed in Congress. The relatively new Texas “anti-SLAPP” statute is the most powerful speech protection statute ever adopted in any jurisdiction so far. Whether your business’s revenues dropped because of an Internet attack by a competitor or you were sued by a business whose services you criticized on a blog, the Texas anti-SLAPP statute is something you need to know about.

Defamation in the Internet Age—Have You Been SLAPP-ed?©

In 2006, 83-year-old Alaska Senator Ted Stevens famously described the

Internet as “a series of tubes.”1 Although the late senator is still fodder for

television comics, warp-speed changes in ubiquitous electronic media have left

even members of the Facebook Generation struggling to keep up. Electronic

speech in e-mail, blogs, Twitter, and “Yelp!” reviews pervades our lives like a

virus. Even in our sleep, Internet speech affects what we wear and eat, what we

think, how world leaders make decisions, and even who those leaders are. Barack

Obama’s 2008 election is attributed to his superior use of electronic media.2

Disturbingly, the gruesome knife-beheadings of American journalists by taunting

ISIS terrorists is also likely attributable to their certainty that viral transmission of

the grotesque videos on You-Tube would give them planetary shock value. There

always seems to be a serpent in the Garden.

The Dark Side of Free Speech Is Nothing New

Some argue the Founding Fathers would never have condoned First

Amendment protection for Hustler Magazine’s ad parody of Jerry Falwell

confessing that his first time having sex was with his own mother, drunk in an

outhouse.3 They are wrong. The right to speak hurtfully about public figures was

used by the Founding Fathers themselves with relish—on each other. In the

election of 1800, a political opponent wrote that president John Adams was “old,

querulous, bald, blind, crippled, [and] toothless.”4 An operative hired by Adams’

opponent Thomas Jefferson added:

John Adams is a hideous hermaphroditical character with neither the force

and firmness of a man, nor the gentleness and sensibility of a woman.5

Adams then called Jefferson “a mean-spirited, low-lived fellow, the son of a halfbreed

Indian squaw, sired by a Virginia mulatto father.”

Speech can comfort the afflicted as well as afflict the comfortable. It was

ever so. Jerry Falwell was not the first stuffed shirt to be deflated in the media.

He will not be the last. Only the media are constantly changing.

1 “[T]he Internet is not something that you just dump something on. It’s not a big truck.

It’s a series of tubes. And if you don’t understand, those tubes can be filled and if they are filled,

when you put your message in, it gets in line and it’s going to be delayed by anyone that puts into

that tube enormous amounts of material.” Singel, Ryan; Poulsen, Kevin (June 29, 2006) “Your

Own Personal Internet,” www.wired.com, last accessed August 31, 2014. [Emphasis added.]

2 See Stirland, Sarah Lai, (November 4, 2008) “Propelled by Internet, Obama Wins the

Presidency,” www.wired.com, last accessed August 31, 2014.

3 The U.S. Supreme Court unanimously reversed a jury award in favor of the muchadmired

minister, declaring Hustler’s ad parody to be protected speech about a public figure.

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48 (1988).

4 McCullough, David, John Adams, p. 500, quoting a letter from Abigail Adams.

5 Swint, Kerwin, “Founding Fathers’ Dirty Campaign,” CNN Living, August 22, 2008.

Modern Legal Problems of Free Speech and Defamation

In the 20th century, courts sometimes struggled with the boundaries of First

Amendment protection in ways that looked sadly comical even at the time. After

Potter Stewart famously wrote that he could not define pornography but, “I know

it when I see it,”6 the U.S. Supreme Court met in the basement for awkward movie

nights, watching the improbable escapades of Lesbian Nymphomaniacs and other

films to decide if they contained “redeeming social value.” Subtly mocking

Stewart, law clerks would sometimes cry out in the darkness, “I can see it!” John

Marshall Harlan was nearly blind at the time and could not see the films, so

Thurgood Marshall gleefully narrated the clips for him.7

In the 21st century, the law of defamation is no longer in flux, but a new

species of legal predator has evolved from the Internet’s DNA and now quietly

swims the electronic seas in search of prey. The web’s free access, unprecedented

reach, and the extraordinary ability of its users to speak anonymously have created

a torrential flood of electronic speech on an endless variety of topics. Anonymity

removes inhibitions that traditional social standards may impose in other contexts,

so Internet rhetoric may be coarser, meaner, and more hyperbolic. However, it is

no less constitutionally protected. In 1997, the U.S. Supreme Court wrote:

Through the use of chat rooms, any person with a phone line can

become a town crier with a voice that resonates farther than it could

from any soapbox. Through the use of Web pages, mail exploders,

and newsgroups, the same individual can become a pamphleteer.8

When an Internet “pamphleteer” reaches millions of people with a single

“Tweet” or blog posting, he risks offending far more people than a town crier

walking near Boston’s Old North Church in 1776. Like Jerry Falwell after reading

that his mother “looked better than a Baptist whore with a $100 donation,” angry

targets of vulgar Internet mockery and denunciation may sue the Tweeters and

bloggers for it—especially if the targets are wealthy and powerful. Thus, the giant

Internet-spawned shark of which free-speechifiers are now a plentiful supply of

victims is called a “SLAPP suit,” an acronym for “Strategic Lawsuits Against

Public Participation.” It has turned the waters red with blood.

6 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) regarding possible obscenity in The Lovers.

7 Tribe, Laurence, and Matz, Joshua, “Uncertain Justice: The Roberts Court and the

Constitution,” ch. 4.

8 Reno v. ACLU, 521 U.S. 844, 870 (1997).

What is a SLAPP Suit?

A SLAPP suit is brought not because the plaintiff seeks compensation for

an injury, but to chill the exercise of free speech—by exploiting the speaker’s fear

of having to defend even a frivolous suit. Often no attempt is ever made to serve

the defendant with process (which would trigger duties on the plaintiff’s part). Of

course, the pleadings are usually sent to the defendant informally so he knows he

has been sued. Often “emergency” injunctive relief is sought even before the

defendants learn the suit has been filed.9 Sometimes multiple SLAPP-suits are

filed simultaneously in different courts—by the same plaintiff making the same

allegations against the same defendants.

A typical SLAPP suit alleges that the defendant’s Internet comments have

defamed him and intentionally inflicted emotional distress, but angry plaintiffs

may also claim business disparagement, tortious interference, fraud, conspiracy,

and even “harassment” and “electronic stalking.” The fact that a claim is not a

recognized civil cause of action does not deter a SLAPP-suit plaintiff—he desires

to create fear, not survive appellate review. And SLAPP suits are not limited to

electronic speech. There are even cases based on speech in Halloween

decorations—quarreling neighbors who decided to mock each other on fake frontyard

tombstones literally made a “federal case” out of the free-speech

ramifications of their comical public barbs.10 (The speech was protected.)  
Plaintiffs often drop their SLAPP suits when a defense lawyer appears.

Even though “nonsuiting” technically does not purge the offender’s violation of

pleading rules, judges are nevertheless loath to punish a plaintiff who unilaterally

disarms. Of course, by that time, the damage is done. The defendant has paid a

lawyer to defend, but is deprived of his day in court. Thus, SLAPP-suit plaintiffs

have evolved a useful technique to create the false impression that they are

benign—rather like a Texas ’possum “playing dead.” The SLAPP-suit plaintiff

nonsuits, re-files his SLAPP-suit in a different court, and begins the process anew.

This author’s last SLAPP-suit defense before adoption of the new statute

discussed below was a two-year odyssey for the individual bloggers ending in the

Texas Supreme Court. Although successful, the victory was Pyrrhic. There was

no vehicle for the clients to recover their $250,000.00 in attorney’s fees from the

soundly-rebuked plaintiff. See In re Does 1 and 2, 337 S.W.3d 832 (Tex. 2011)

(orig. proceeding). But all this changed in 2011.

9 Called “ex parte” relief, such injunctions often operate as illegal, content-related prior

restraints on speech, but are granted by busy judges anyway because the other side is not present

in court to argue against them.

10 Purtell v. Mason, 527 F.3d 613 (7th Cir. 2008); see also Salama v. Deaton, 10-CA-00310 (Fla.

13th Cir. Ct.).

What You Can Do Now If You Get SLAPP-ed

By 2011 when In re Does 1 and 2 was decided, the use of SLAPP suits to

squelch public criticism had reached such a fever pitch in Texas that the

Legislature adopted the Citizens Participation Act (“TCPA”) by a unanimous vote

in both houses. To date, 28 other states and the District of Columbia have also

adopted anti-SLAPP statutes. At just over three years old, the TCPA is only a

toddler, but it is performing under appellate review like an Olympic gold medal

gymnast. Decisions under the TCPA are exploding out of the courts of appeals

like popcorn kernels in a microwave—in part because of the statute’s provision

allowing immediate, accelerated appeal of any trial court decision that allows a

SLAPP suit to continue.

In a brief this firm filed in a TCPA case in August 2014, we cited fifteen

TCPA appeals decided within just the previous twelve months—and several of

those had come down only weeks before. No other statute or issue has generated

this volume of decisional law in so short a period. It appears no appellate court

has yet reversed a trial court for dismissing a SLAPP suit—they have all either

upheld dismissal or reversed the trial court for failure to dismiss. The Texas

statute may be the most powerful anti-SLAPP statute yet enacted in any

jurisdiction. Here are seven reasons why. The TCPA:

(i) Requires dismissal of the suit on the defendant’s motion unless the

plaintiff brings forth “clear and specific evidence” of each element

of each cause of action pled—even non-defamation claims.

(ii) Automatically stays discovery—usually the most expensive stage of

a case.

(iii) Requires the court to hold a hearing on the defendant’s motion to

dismiss within 60 days—light-speed by juridical standards.

(iv) Requires the court to rule on the defendant’s motion to dismiss

within 30 days of the hearing—curing the common scourge of a

court’s passively denying relief by simply never making a ruling.

(v) Mandates not only an award of the defendant’s attorney’s fees but

also sanctions “sufficient to deter the filing of similar actions.”

(vi) Flings the doors of the appellate courthouse wide open if the trial

court fails to rule and allows a rare “interlocutory” appeal—which is

also given precedence over all other appeals.

(vii) Requires courts to “liberally construe” the TCPA to “fully

effectuate” its purpose and intent.

In one of this firm’s cases presently on appeal, we are asking for $1 million in

sanctions for our client—a higher amount than any court has awarded to date, but

one we believe justified under the unique facts of that case. Perhaps more

importantly, briefing in that case was completed only in early October, the case

was orally argued on October 21, 2014, and the case is now ripe for a decision in

the court of appeals.

If you get SLAPP-ed in Texas, look down. Thanks to the TCPA, you are

already wearing the ruby slippers that have the power to whisk you away from the

land of witches, judges, and legal bills more quickly than you may think. Like

Dorothy, you just didn’t know it.

(Jeffrey L. Dorrell is a board-certified civil trial specialist in First Amendment law

who has represented SLAPP-suit defendants in cases from the trial court to the

Texas Supreme Court.)

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Q.  In light of the recent defamation litigation won by David Barton against two Democratic candidates for the SBOE, would you agree with the lawyer cited in this article that the statute needs to be strengthened?

A.  "Jennings v. Wallbuilders was decided under a version of the Citizens Participation Act that was amended by the Legislature—in direct response to the Wallbuilders case—just four months later to prevent what happened to the SLAPP-suit victims in that case from ever happening again. Unfortunately, the amendment could not help the victims of the Wallbuilders SLAPP suit after the fact. Under the amended version of the statute as it has existed since 2013, the outcome would likely have been much different."