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How the Courts Are Being Used to Intimidate Americans into Silence

Our system is too open to frivolous lawsuits intended to squelch free speech. There’s a lot that state lawmakers could do to protect Americans’ First Amendment rights.

A paper form that says “lawsuit” at the top.
Free speech is vital for progress. It makes fighting for change possible by protecting and exposing new ideas and perspectives, which leads us to innovate, learn and solve problems together. Because the First Amendment is crucial to our freedom, it’s imperative that Americans — especially public officials — remain on high alert to protect it.

That’s increasingly a monumental task. From misguided “anti-protest” bills to censoring books and “divisive concepts,” some lawmakers, either knowingly or unknowingly, look for ways to silence other Americans and ideas they don’t like. While these speech issues are seemingly in the news every day, one little-known and under-discussed method to silence other Americans takes place through our legal system: “strategic lawsuits against public participation,” or SLAPPs. These are meritless lawsuits intended to intimidate and silence journalists, whistleblowers and everyday Americans.

People who file SLAPPs know they are unlikely to result in victory in court. The lawsuit itself is the goal. Getting sued is expensive, time-consuming, embarrassing and stressful, even when the suit is without merit. And most people lack the knowledge, resources and time to properly defend themselves, so often being sued — or just getting threatened with being sued — is enough to cause people to back down and keep their mouths shut.

SLAPPs enable people to weaponize our legal system to shut down opposing views. And they are ripe for abuse. A business owner doesn’t like a Yelp review, so he sues the reviewer for defamation. A perpetrator sues the victim of a crime to try to keep them from going public with their accusations. A businessman sues a TV show over coverage he doesn’t like. Or perhaps a man sues a woman after she rejects him for a date and then writes about it on social media — yes, people have tried this.

Fortunately, there is a policy solution to this problem. State and federal anti-SLAPP efforts enable people to voice their opinions. Our organization, Americans for Prosperity, works with a diverse array of partners to reform policies to make it easier for courts to quickly identify and dismiss SLAPPs. Most recently, AFP’s efforts to protect free speech paid off in Tennessee and Texas, where the legislatures passed anti-SLAPP measures. This year, five more states are considering similar policies.

According to a new report by the Institute for Free Speech, 31 states and the District of Columbia now have functioning anti-SLAPP statutes. The IFS report assesses the existing anti-SLAPP statutes and provides ratings from A to F for their effectiveness in protecting First Amendment rights. Of the 32 jurisdictions with functioning anti-SLAPP statutes, 17 received a grade of B or higher; the remaining 15 jurisdictions received a C-plus or lower.

Lawmakers can access a map of the United States to view the rating for their state, and the report explains in detail the rationale of those ratings and grades. The report also offers ways that lawmakers can improve their anti-SLAPP efforts and includes a discussion of what the components of a well-designed anti-SLAPP statute look like.

The last thing America needs is to have our already overburdened legal system clogged with pointless, frivolous lawsuits. But the more important issue is protecting the rights of Americans to exercise their constitutional right to speak freely. As public officials, lawmakers have the opportunity to protect these rights and to make sure that free speech remains the best tool Americans have to drive progress.

David Voorman is the senior policy analyst for free speech and peace at Americans for Prosperity. For a primer on SLAPPs, see this AFP post.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
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