Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay

On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

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

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

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-à-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."

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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?

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)

Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

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

Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

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 reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

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).

Extortion claim survives anti-SLAPP motion because defendants could not show petitioning connection

Haverhill, Mass., on the Merrimack River, 2008
(photo by Fletcher6 CC BY-SA 3.0)

Defendants could not raise an anti-SLAPP law against allegations of extortion, the Massachusetts Appeals court ruled before the Memorial Day weekend, because extortion did not relate plausibly to the defendants' constitutionally protected petitioning.

Plaintiffs Stem Haverhill and owner Caroline Pineau were applicants for zoning ordinance changes to permit a marijuana dispensary, since opened, in the downtown riverfront district of Haverhill, Massachusetts, a city 35 miles north of Boston, on the New Hampshire border.  Defendants Brad Brooks and Lloyd Jennings leased nearby residential and restaurant space and opposed the zoning changes.

Brooks and Jennings had had a scrap over property boundary with the previous owner of the Stem lot and had paid $30,000 to resolve the matter.  According to the complaint, Brooks and Jennings, apparently bitter over the former matter, demanded more than $30,000 from Pineau as the price of their acquiescence to zoning changes, no matter what the proposed use.

Stem and Pineau sued under the broad Massachusetts tort-and-consumer-protection statute, chapter 93A, as well as state civil rights law and common law defamation.  As often occurs in anti-SLAPP suits, both parties claimed the exercise of constitutional rights.  The plaintiffs were petitioning the government for zoning changes.  The defendants invoked anti-SLAPP upon the theory that the plaintiffs' civil charges of extortion were calculated to interfere with defendants' petition of government in opposition to the zoning changes.  (Read more about anti-SLAPP on this blog.)

The Massachusetts anti-SLAPP statute facilitates dismissal in favor of the defense by special motion upon the theory that litigation is being weaponized to chill the defendant's (or counter-defendant's) free exercise of the right to petition.  As construed by the Supreme Judicial Court, and quoted in part in the instant case, "a defendant seeking dismissal must show, at the threshold, that the claims against it 'are based solely on [its] exercise of its [constitutional] right to petition.'"

The extortion allegations did not fit the anti-SLAPP pattern, the court concluded, affirming the trial court on de novo review.  "Here, some of the defendants' statements to the Pineaus cannot reasonably be viewed as relating to the defendants' petitioning activities. As discussed, the defendants' focus was to obtain money from Pineau that the defendants knew Pineau did not owe to them."  Litigation in the Land Court could not produce a financial award, the court observed, thus undermining the defendants' position.  The court further reasoned:

Here the defendants did not merely oppose Pineau's proposed business, nor did they merely seek to negotiate their price.  Rather, the complaint describes a concerted and extended effort to coerce Pineau to pay, "or else"—complete with thinly veiled threats such as that Pineau "doesn't know who she is dealing with." The complaint thus adequately describes extortion—coercion by improper means that is designed to reap an economic reward. Such actions, in the business context, can be actionable under c[hapter] 93A, and given the facts alleged here, the suit is not based solely on petitioning activity as required by the anti-SLAPP cases.

Though the "solely" limitation is not found in the anti-SLAPP statute, the rule appropriately narrows the doctrine to its roots in protecting the right to petition.  Had the case proceeded in the Massachusetts anti-SLAPP process, the plaintiff would have been afforded an opportunity in rebuttal, also, to articulate a purpose apart from chilling the right to petition.  As the Appeals Court observed, "The Supreme Judicial Court has construed the statute several times, and has provided a framework, which has evolved over time, for analyzing whether an anti-SLAPP motion to dismiss should be allowed."

The case is Haverhill Stem LLC v. Jennings, No. 20-P-537 (Mass. App. Ct. May 26, 2021).  Justice John Englander authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Kinder.

Anti-SLAPP is not all it's cracked up to be

John Oliver this week on Last Week revisited the defamation lawsuit he drew against HBO from Bob Murray and Murray Energy.  The piece brings viewers up to speed on the feud.

Murray just dropped the suit, which was on appeal of dismissal to the West Virginia Supreme Court.  That led Oliver to do this effective segment on the problem of strategic lawsuits against public participation (SLAPPs).  Oliver called on the 20 states without anti-SLAPP statutes to adopt them, lest nationwide speakers remain subject to lawsuit in lowest-common-denominator, plaintiff-friendly locales.

I'm a big John Oliver fan—next-level, best standup I've ever seen, not to mention having redefined social commentary through comedy—and a free speech and journalism advocate.  That said, I am on record in opposition to anti-SLAPP laws, and I remain so.  The laws are an ill fit to resolve the underlying problem of excessive transaction costs in litigation and work an unfairness against legitimate causes of action.  Our First Amendment law radically weights defamation tort law against plaintiffs like nowhere else in the world, admittedly prophylactically dismissing claims by genuinely injured plaintiffs.  Defendants don't need another weapon in their arsenal.

Oliver is right that there are plenty of cases in which litigation is abused in an effort to suppress free speech.  But anti-SLAPP laws sweep within their ambit nearly every defamation and privacy case.  Defamation plaintiffs who have been genuinely injured and have no SLAPP motivation whatsoever also must respond to anti-SLAPP motions and are likely to suffer dismissal and pain of attorneys' fees—not because their suits lack merits, but because they lack access to discovery to get their hands on real, existing evidence of malice, discovery that our civil litigation system routinely affords to tort plaintiffs in the interests of justice.

The essential concept of anti-SLAPP law is said to have originated in Colorado as a means to protect environmentalists from retaliatory litigation by developers.  If you want to see evidence of my doubts about the efficacy of anti-SLAPP legislation, look no farther than a decision by the Supreme Judicial Court of Massachusetts just today, in which, literally, a property developer is the anti-SLAPP claimant in an epic litigation that has generated enormous transaction costs over anti-SLAPP procedure without ever reaching the merits of the case.

Anti-SLAPP laws look good on paper.  But they indiscriminately undermine tort law.  The effect of denying compensation to genuinely injured plaintiffs will be the effect of a failed tort system: unfairness, increased abuse by bad actors, and, ultimately, injured persons taking the law into their own hands.  Media advocates wonder why Generation Z, et seq., are hostile toward free speech.  Be careful what you wish for.

Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011

An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Anti-SLAPP helps free speech vanquish another foe! But is that always how it works?

The Massachusetts Supreme Judicial Court (SJC) has rejected a defamation claim connected with the Deepwater Horizon oil spill on anti-SLAPP grounds.  The case is Cardno ChemRisk v. Foytlin, No. SJC-12082 (Feb. 14, 2017).

Environmentalists Cherri Foytlin and Karen Savage authored an op-ed for a Huffington Post blog in which they accused scientific consulting firm Cardno ChemRisk, LLC, of “a long, and on at least one occasion fraudulent, history of defending big polluters using questionable ethics to help their clients avoid legal responsibility for their actions.”  With respect to “fraud[],” the writers had alleged that ChemRisk accepted payment “to discredit research” that would have been probative of liability in the pollution case that became the basis of the movie, Erin Brockovich. 

“Anti-SLAPP” motions, allowed in 28 states and D.C. according to the Digital Media Law Project, are pretrial, usually dispositive motions that allow defendants to have the court take an early look at the merits of a tort lawsuit, with an eye to dismissal.  A “SLAPP” is a “strategic lawsuit against public participation” and refers to a lawsuit, often but not necessarily defamation, that is brought more for the purpose of miring an opponent in the burdensome transaction of litigation than for the purpose of redressing wrongful injury.

A darling of the media defense bar, anti-SLAPP is heralded as a contemporary savior of the right to petition and protest.  Some—me included—are a good deal more skeptical, finding that anti-SLAPP is often just one more hammer in the well-heeled, corporate-defense-bar toolbox to pulverize a plaintiff who might have a legitimate grievance but needs discovery to prove it—and furthermore a disincentive to media defendants to mediate disputes or make reasonable settlement offers.  In fact, media defendant victorious on anti-SLAPP motions often are entitled to have their attorney fees paid by the plaintiff, a remarkable departure from “the American rule” norm in U.S. litigation.

The terms of anti-SLAPP statutes vary considerably with state law.  The Massachusetts anti-SLAPP law requires that the defendant have been exercising its “right to petition,” an allusion to the First Amendment.  But the scope of petitioning activity contemplated by the statute is much more permissive than the First Amendment doctrine.  The statute embraces “any statement reasonably likely to enlist public participation in an effort to effect” governmental “review of an issue.”

As the court described the Foytlin blog post, it was “part of the defendants’ ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and it closes with an implicit call for its readers to take action.”  In particular, ChemRisk complained on appeal that the bloggers were not advocating on their own behalf.  The SJC, per Justice Lenk, found the statute not so constrained.

This might have been the just outcome in this litigation.  I don’t pretend to know better.  The court wrote an excellent explication of the Massachusetts anti-SLAPP statute and how it works procedurally, as well as its policy purpose.  The court characterized the legislature’s purpose as “primarily to protect ‘citizens of modest means’ who speak out against larger, more powerful entities.”  According to a footnote, “Foytlin is a mother of six supporting herself with modest monthly stipends; she lives in Louisiana less than fifty miles from the affected portion of the Gulf Coast shore.”  I suppose ChemRisk is a brutal, evil company, like Spiga Biotech in Syfy TV’s Incorporated.  The opinion doesn’t say. 

I have no warm and fuzzy feelings for ChemRisk, nor for BP and its partners in oil drilling.  But before we sing another round of hymns in knee-jerk praise of anti-SLAPP legislation, let’s at least acknowledge that the statute nowhere turns on the relative social power of the parties, or on their wealth, or on their parental or corporate status.

Media Goliaths already have a thousand and one ways to win a defamation lawsuit, even upon publication of falsity and refusal to update, investigate, or correct.  Sometimes plaintiffs are just Davids whose lives have been up-ended by malicious allegations calculated to advance an agenda regardless of the collateral damage.  I know what I’m talking about.  Cutting off a plaintiff at the knees and chilling the right to petition of truly aggrieved individuals is hardly an effective response to the very real problem of litigation transaction costs.  Let’s not be too quick to congratulate ourselves on another win for free speech.