A recent lawsuit being filed against certain interests and bloggers in the “doomsday prepper” or “survivalist” movement reminds me of the need to revisit the subject of SLAPP lawsuits, or Strategic Lawsuits Against Public Participation.
SLAPP suits are genuinely “frivolous” lawsuits aimed at bullying defendants, forcing them to spend money of legal fees to keep on speaking, especially online, when their speech doesn’t itself make money in a commercial way. They tend to be filed by unusual business interests on the more extreme ends of the political spectrum. The far Left has been guilty of SLAPP suits as well as the Right, although “red” states tend to have weaker anti-SLAPP protections. The sort of party who files them tends to believe that social and political stability is achieved by “keeping ordinary people in line”. This sounds like the mentality of Donald Trump, Vladimir Putin, and China. Plaintiffs tend to have business models based on public perception and high volume of activity concerning some very narrowly focused product or activity – a niche. They tend to believe they have others depending on them (“family”), and that speakers have no real standing to be heard.
Wikipedia’s article lists 28 states that have some anti-SLAPP protection for speakers. These include California (one of the strongest), New York, Maryland, and the District of Columbia, but not Virginia.
Electronic Frontier Foundation, in an article by Sophia Cope, discusses the Speak Free Act of 2015, HR 2304 . The bill would authorize bringing bills from state court to federal court, and would clean up many jurisdictional ambiguities which the article (and Wikipedia piece) explain that tend to encourage “forum shopping” by plaintiffs.
Libertarian-leaning journalist John Stossel, back in the late 1990s, in an ABC 20-20 broadcast, had covered the idea of “loser pays” (common in Europe) as a way to discourage frivolous suits. Sometimes this is true of copyright cases. Objections to “loser pays” laws often come in the medical area, concerning accident or malpractice victims. But the idea would seem to make sense in defamation and privacy cases.
I’ve posted a story on the litigation against “Survival Blog” on a legacy blog here . One of the issues I the suit appears to be whether one can successfully litigate a defamation claim against a defendant merely for providing a secondary hyperlink to another defamatory article. (In this case, there may be an issue of a brief characterization of the plaintiff by the defendant in a post.) It’s interesting that the action was filed in Ohio (Cleveland) where there is no anti-SLAPP suit. The hyperlink issue could come up with video (YouTube or Vimeo) embeds. It also may exist with copyright claims, especially “deep hyperlinks”, although back in 2000 a federal court had ruled that a deep link is like a footnote in a high school or college term paper. (English teachers to the rescue!) On my blog post, you can follow Blogger labels like “hyperlinks” and “SLAPP” for historical development of these issues.
Some authorities say that a “rule of first publication” should prevent secondary downstream liability for both defamation and copyright.
The psychology behind filing SLAPP suits reminds me of patent trolling (and variations of these models have occurred with copyright trolling – Righthaven, of a few years ago – and trademark name trolling). There is considerable controversy specifically over software patents, which often are overly “conceptual” in nature. I have wondered if the problem could be controlled by requiring patent owners to actively market their own products or services. But that would be like saying authors have to be able to sell their books directly rather than depend on Amazon!
(Posted: Thursday, Oct. 20, 2016 at 12:45 PM EDT)