[UPDATE, Nov. 11, 2019: The SJC today issued another installment in 477 Harrison saga. Remanding, the Court determined that abutters' counterclaims were retaliatory, not substantive, so should not be sustained against the developer. I'll say again, anti-SLAPP was not designed to protect developers in land feuds, much less to generate multiple interlocutory dispositions, and this case speaks directly to the pathology of anti-SLAPP.]
Wednesday, May 31, 2017
Anti-SLAPP gone wild: Massachusetts tightens the reins
[UPDATE, Nov. 11, 2019: The SJC today issued another installment in 477 Harrison saga. Remanding, the Court determined that abutters' counterclaims were retaliatory, not substantive, so should not be sustained against the developer. I'll say again, anti-SLAPP was not designed to protect developers in land feuds, much less to generate multiple interlocutory dispositions, and this case speaks directly to the pathology of anti-SLAPP.]
Thursday, February 25, 2021
Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa
![]() |
Coffee Bay is a tourist destination on the Eastern Cape. (photo by Jon Rawlinson CC BY 2.0) |
In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.
Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation. South Africa has no anti-SLAPP statute. But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.
"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.
The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring. The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter. Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.
The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England. Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted. Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP. In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous. Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.
In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world. The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.
I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case. In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture. The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch. Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.
The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks. The instant case was not difficult for the court to map to the SLAPP paradigm: The tort alleged was defamation. The conduct of the defendants was expression specifically in furtherance of environmental protection. The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."
The plaintiffs' demand also drew the court's skepticism. Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."
I reiterate my dislike of anti-SLAPP laws. I also acknowledge that anti-SLAPP measures sometimes are warranted. South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma. Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform. At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.
The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant. Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers. American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets. The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms. Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.
For that reason, the High Court's "abuse of process" approach is intriguing. The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test. The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."
Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element. Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts. Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.
The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath. Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP. Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court. In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved. Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe. JP Hlophe denies the allegations.
I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.
The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).
Saturday, May 23, 2020
Anti-SLAPP slaps justice, but Richard Simmons survives dismissal in privacy suit over tracking device
![]() | |
Sensational Simmons in 2011 (Angela George CC BY-SA 3.0) |
And then as if to say to me, "you go, girl," Richard Simmons popped up in my newsfeed. More on that in a minute.
'Anti-SLAPP'
Anti-SLAPP is a mostly statutory court procedure meant to diffuse "strategic lawsuits against public participation," that is, essentially, to dispose quickly of lawsuits that are meant principally to harass a defendant who is participating in public life in a way protected by the First Amendment, namely, speaking or petitioning.
The prototype case is a land developer who sues environmental protestors for a tort such as interference with contract. An anti-SLAPP statute allows the protestor-defendant to obtain a quick dismissal, because the plaintiff knows the protestor is not a business competitor, and the plaintiff's true aim is harassment via tort litigation. Anti-SLAPP may be useful if, say, and I'm just spitballing here, you're a sexual assault complainant suing a politician with a habit of counterclaiming for defamation. But the far more common use of anti-SLAPP motions is when a mass-media defendant is sued for, well, anything.
The communications bar loves anti-SLAPP. And what's not to love? What anti-SLAPP statutes demand varies widely across the states. A defendant's anti-SLAPP motion might require only that the plaintiff re-submit the complaint under oath, or more aggressive statutes demand that the court hold a prompt hearing and dismiss the complaint if the plaintiff cannot show probability of success on the merits, a stringent pretrial standard reserved usually for preliminary injunctions. Whatever the statute requires, the universal takeaway is that the blocking motion is good for the defense, providing another way to slow down litigation and require more money, time, and exertion by the plaintiff—who, let's not forget, usually is a victim of injury, even if the injury has not yet been adjudicated to be the fault of the defendant.
My problems with anti-SLAPP are legion, not the least of which is that the communications defense bar hardly needs a new defense at its disposal. We already have the most overprotective-of-free-speech tort system in the world. Without diving deep today, it will suffice to say that my opposition to anti-SLAPP fits neatly into my broader position that the famous civil rights-era innovation in First Amendment law embodied in New York Times v. Sullivan (U.S. 1964) should rather be described as an infamous and pivotal turn down a wrong and dangerous road, which is why courts around the world have widely rejected the case's central holding. My position makes me about the most despised person at any communications defense bar conference, so I mostly skip the social events, after I've redeemed my free drink tickets.
Along Came Richard Simmons
When I talk about the abusive deployment of anti-SLAPP, I'm usually talking about the plaintiff's inability to prove Sullivan "actual malice," which, as a subjective standard, requires evidence of the defendant's state of mind. In an especially wicked cruelty, a typical anti-SLAPP motion requires the plaintiff to show likelihood of success in proving defendant's actual-malicious state of mind before the plaintiff is allowed to use litigation discovery to collect evidence—all of which remains in the defendant's possession.
![]() |
Bastion of the First Amendment (2015 image by Mike Mozart CC BY 2.0) |
What I don't usually talk about is the kind of thing that apparently happened lately to Richard Simmons. The once-and-future fitness guru—don't miss Dan Taberski's podcast Missing Richard Simmons (e1), which, however "morally suspect," might be my favorite podcast ever—alleged in a California invasion-of-privacy lawsuit that celebrity gossip rag In Touch Weekly hired someone to put a tracking device on Simmons's car. As media, do, and maybe now you to start to see the problem, In Touch Weekly asked for dismissal under California's powerful anti-SLAPP statute, putting to the test Simmons's audacious challenge to the shining gold standard of American journalism.
Fortunately in this case, a trial judge, and this week a California court of appeal, held that news-gathering through trespass, or intrusion, is not what anti-SLAPP is made to protect. Correspondingly, there is no First Amendment defense to the tort of invasion of privacy by intrusion. So Simmons's case may resist anti-SLAPP dismissal.
Also fortunately, Richard Simmons has the financial resources and determination to fight a strong invasion-of-privacy case all the way through an appeal before even beginning pretrial discovery. This isn't his first rodeo. Richard Simmons is a survivor.
Someone needs to give Richard Simmons a law degree, and one day I won't feel so alone at the comm bar cocktail party.
The case is Simmons v. Bauer Media Group USA, LLC, No. B296220 (Cal. Ct. App. 2d App. Dist. 4 Div. May 21, 2020). Parent-company Bauer Media Group, by the way, owned the gossip magazines that lost to Rebel Wilson in her landmark Australian defamation case.
Now move those buns.
Wednesday, April 21, 2021
Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction
![]() |
Christian Dorn from Pixabay |
I've written about anti-SLAPP many times. I'm not a fan of the statutes. The OTM piece is good and important, but it tells only one side of the anti-SLAPP story. That's a common, and forgivable, shortcoming in mass media coverage of itself.
Why I Care, and You Should Too
So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go. Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized. As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice. What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth. News media defendants might remember the truth from journalism school.
How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game? If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth. Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992. And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure. The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court. But, media defendants implicitly pleaded in response, why should we listen when we always win?
Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing. "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists. Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.
As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works. Other times, David is summarily shut out of court at the behest of Goliath. The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.
Squirrel! SLAPPs Aren't the Problem
SLAPP suits only work because of a bigger dysfunction in tort law: Transaction costs are way too high. Lawyers and litigation cost too much. (Law school costs too much, but that's another rabbit hole.) Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money. Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead. The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs. We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.
Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery. The game is rigged, because the evidence the plaintiff needs is in the possession of the defense. So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation. But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.
If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money. Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.
The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar
In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR. The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds. A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant. Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.
CIR is not an outfit that publishes without doing its homework. So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR. And I think it's OK that OTM interviewed only Baranetsky. "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism. OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories. Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's. Missing is reasoned resistance to the anti-SLAPP craze. Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.
Lamentation Over Forum Shopping
(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective. Federal anti-SLAPP would fix this problem.
Forum shopping is a problem, but not specially a media defense problem. Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right. Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute. Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool. The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.
Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives. Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.
Lamentation Over the Burdens of Discovery
(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP.
Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure. Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity. Subjective culpability lies only in the mind of the defendant. Without precogs, we prove subjective culpability with circumstantial evidence. When the defendant is a mass media organization, that evidence is in the possession of the defendant. Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.
Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess. Win-win for the media defense, lose-lose for access to justice. Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet. With that complaint, I am sympathetic. Again, though, the answer is to change the process to control transaction costs. The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.
Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth. I take this point, too. I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions. But courts can and should control the scope of discovery with appropriate protective orders.
Lamentation Over Interment by Paper
(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles." That again upped media defense costs and slowed down the anti-SLAPP process.
I don't doubt that the complaint was longer than it needed to be. Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law. Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers. Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.
More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way. It's not "padding," "bells," or "whistles." Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain. Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity. As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded. Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.
In my own plaintiff's case, precisely this happened. Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson. To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication. In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not. Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.
Lamentation Over Litigiousness
(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."
OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack. An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."
I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail. As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance. But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin. In reality, rare in the extreme is the case that there is not at least a demand letter and response.
In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations. I sought to diffuse the disagreement through every possible avenue, both vis-Ă -vis my defendants and through negotiation with a third party. Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me. I don't dispute (or support) that thesis in the abstract, but my case did not support it. Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false. In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.
Gajda, by the way, is herself an award-winning journalist and scholar of media law. Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened. We know each other, and I'm not hard to find. If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?
How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat. Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress. To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency. Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses. Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense. Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.
Lamentation Over the Price of Free Speech
(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread. The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."
That's a profound misapprehension of anti-SLAPP laws. There is nothing about anti-SLAPP that is precise or acute. Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense. Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation. The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.
Baranetsky's take on anti-SLAPP is ironic in the extreme. The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity. That proposition has been vigorously refuted by scholars as demonstrably erroneous. And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."
𓀋
I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.
Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises. I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism. I am fearful of a world in which that reporting does not happen.
Nevertheless, I object to a legal standard that presumes news media have the corner market on truth. If our system of civil dispute resolution is broken, and I think it is, then we need to fix it. Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims. Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.
At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.
Now where have I heard that before?
Wednesday, October 14, 2020
Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues
It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.
Racial Slurs and Other Not-So-Pleasantries
Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))). In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."
A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication. Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself. He described their exchange as "civil." At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte. Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).
'Racist,' as a Matter of Fact
La Liberte sued Reid in the Eastern District of New York on a single count of defamation. Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."
That point alone, on the merits, is interesting. When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation. Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it. Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.
Anti-SLAPP as the Sword of Goliath
A second compelling issue in the La Liberte case is the operation of anti-SLAPP law. Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.
That sounds good, but problems with anti-SLAPP law are legion. One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery. Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.
![]() |
Joy Reid (Luke Harold CC0 1.0) |
The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction. The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case. The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.
As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court. Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation. A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.
La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend. The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.
Limited-Purpose Public Figures and the Involuntarily Infamous
![]() |
La Liberte at the City Council meeting |
La Liberte had not pleaded actual malice. And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure. La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention. A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.
Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.
Enter 'the Lawyer for the Damned'
After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson. WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society. "The law of defamation is nuanced, peppered with landmines under the
First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified
privileges," WG&W writes on its website. "We know where those landmines are and, more importantly,
how to navigate successfully around them." WG&W notified the court of its withdrawal on September 28, 2020.
![]() |
Wood, 2011 (Gage Skidmore CC BY-SA 3.0) |
The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020). I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).