- - Wednesday, March 9, 2016

ANALYSIS/OPINION:

“We’re going to open up those libel laws so when The New York Times writes a hit piece we can sue them and win money,” Donald Trump said at a recent campaign stop in Texas. “We’re going to open up libel laws and we’re going to have people sue you like you’ve never gotten sued before.”

We’ve reached a point as a nation where the leading Republican candidate for president of the United States is actually campaigning on silencing his political critics through litigation.

Mr. Trump’s saber-rattling toward the media isn’t an idle threat. In 1984, he sued the Chicago Tribune and his chief critic at the paper, Paul Gapp, for $500 million based on an article declaring Mr. Trump’s plan to build the world’s tallest tower as “one of the silliest things anyone could inflict on New York or any other city.” The court ultimately tossed the suit by finding “that the statements contained in the Tribune article [were] expressions of opinion” that enjoyed full First Amendment protection. From the time the suit was filed, Mr. Trump seemed more interested in thumping his detractors than actually recovering damages with a weak legal argument.

For the uninitiated, that type legal action is known as a strategic lawsuit against public participation (SLAPP). A SLAPP uses the legal process as a weapon against free speech. It isn’t designed to assert a claim likely to succeed on the merits. Instead, the plaintiff uses the cost, hassle and reputational damage associated with a lawsuit to force silence, avoid transparency or intimidate a defendant from expressing his views.

When it comes to elected officials, especially the president of our nation, the public has a significant interest in hearing information, opinion and commentary about their actions and words. That may not be convenient for the political class, but it’s certainly a type of speech that we have a national interest in protecting.

We’re currently operating under a patchwork of anti-SLAPP laws. Slightly more than a quarter of the states have some form of protection against SLAPPs. The laws serve two basic purposes: Creating a disincentive to file SLAPPs and providing a lower-cost litigation exit for defendants. Some of them, like Texas’ Citizens Participation Act, suspend the costly discovery process until the court rules on the anti-SLAPP motion.

Unfortunately, even those protections are in jeopardy when it comes to federal courts. As a general rule, substantive state laws apply in federal court, but procedural rules do not. Judges serving on both the District of Columbia U.S. Circuit Court of Appeals and the 9th U.S. Circuit Court of Appeals have suggested that state anti-SLAPP laws should be considered procedural prescriptions and ignored by federal courts.

That’s a major problem when the potential leader of the free world apparently views SLAPP litigation as an acceptable response to criticism. Whether it’s in regard to a fellow candidate, a media reporter or even a public personality voicing his or her opinion, Congress shouldn’t allow aspiring or incumbent elected officials to shape their preferred political narrative through the federal courts. Anti-SLAPP laws certainly aren’t limited to litigious public officials, but it’s a good place to start, given the current political climate.

Right now, Congress has a few options. In May 2015, Republican Rep. Blake Farenthold of Texas introduced H.R. 2304, the Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts (Speak Free) Act. The legislation essentially modifies the Federal Rules of Civil Procedure to create an anti-SLAPP structure in federal court.

Another option is to simply clarify that state anti-SLAPP laws are, indeed, substantive when it comes to litigation that winds up in federal court.

Either option has particular advantages and disadvantages, but they both address a litigation practice that is becoming a threat to free speech and transparency regarding issues and individuals of public interest.

In short, Congress has more motivation than ever to ensure that Donald Trump and other politicians aren’t able to SLAPP their legitimate detractors.

• Cameron Smith is senior fellow and state programs director for the R Street Institute.


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