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Cohen: Protect Free Speech by Combating SLAPPs

Washington Redskins fans no doubt have been enjoying the ongoing legal battle between team owner Dan Snyder and the Washington City Paper, which published a disparaging column about Snyder and his ownership of the Redskins. But Snyder’s lawsuit against the newspaper highlights a much more serious issue — the need for federal legislation to protect the First Amendment rights of all Americans against strategic lawsuits against public participation, or SLAPPs.

The City Paper’s column was admittedly harsh but well within the bounds of free speech, especially about a public figure. Snyder was understandably angry, but instead of fighting speech with more speech, he chose to use the courts for his personal revenge. Whatever you may think of Snyder and the Redskins, the courts are not the appropriate forum for resolving these sorts of grudges.

Snyder’s own attorney seemed to acknowledge the true intention of his lawsuit in a letter to the hedge fund that owns the newspaper, the original object of his suit. He wrote: “Mr. Snyder has more than sufficient means to protect his reputation and defend himself and his wife against your paper’s concerted attempt at character assassination. We presume defending such litigation would not be a rational strategy for an investment firm such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper.”

This is exactly what SLAPPs are all about. They are used to silence and harass critics by forcing them to spend countless time and resources defending against them. SLAPPs use the courts as a weapon to stifle participation in government and chill expression about matters of public interest.

Media organizations are not the only targets of SLAPPs. Countless private citizens have found themselves hauled into court just for speaking out. For example, a college student in Kalamazoo, Mich., was sued for starting a Facebook page to complain about a local towing company. A San Francisco woman was sued for giving her dentist a bad review on Yelp. In North Carolina, a concrete company sued an association of local residents opposed to construction of a plant in their community.

Any one of us could find ourselves bogged down in years of discovery, racking up huge legal fees and living in fear just for speaking our minds. Over half the states have passed legislation to combat SLAPPs in some form, but a federal solution is needed because these laws vary in their strength and breadth. Moreover, federal claims in federal court are not subject to state anti-SLAPP laws. Our First Amendment rights must be protected, regardless of where we live.

That’s why I am drafting bipartisan legislation to provide uniform federal protection against SLAPPs so that every American will be afforded protection against meritless claims that seek only to harass and bankrupt them. This bill does not shut the courthouse door to those with valid claims. It merely provides an expedited process for filtering out suits designed to intimidate and harass citizens exercising their First Amendment rights.

The PETITION Act, or the Protecting the Expression and Transmission of Ideas and Thoughts In Our Nation Act, would provide procedural protections to filter groundless cases before the costs and burden of litigation cause defendants to waive their First Amendment rights by “correcting” or silencing themselves as part of a settlement; allow a SLAPP defendant to bring a special motion for early dismissal and to stay most discovery proceedings pending disposal of the motion; and enable a defendant who prevails on the special motion to recover fees and costs.

It is interesting to note that even though Snyder, the Redskins and the City Paper are all based in the Washington region, Snyder originally chose to file his lawsuit in New York. This is probably because D.C. recently passed strong anti-SLAPP legislation while New York has notoriously weak protections. That’s why we need uniform federal protection.

Free speech and the right to petition the government are enshrined in the First Amendment and are vital to a healthy democracy. The twists and turns of the Snyder case can be fun to watch for a lifelong sports fan like me. But SLAPPs are no laughing matter.

Rep. Steve Cohen is a Democrat who represents Tennessee’s 9th district.