Anti-SLAPP: Congress’ Tort Reform Trojan Horse

There was a time - in the not too distant past, I should say - that support for “anti-SLAPP” proposals was a given for any self-respecting progressive organization. SLAPP suits, or “strategic lawsuits against public participation,” are meritless suits typically brought by companies for the sole purpose of silencing or intimidating critics.

A well-known survivor of corporate intimidation himself, Ralph Nader was an early proponent of raising awareness about the dangers of SLAPP suits, in fact writing in support of the first book ever critiquing them in the 1990s. ("Anyone who treasures and uses the First Amendment will find this first ever book on the SLAPP suit epidemic a wake up call to careful civic action.”) This is interesting because Ralph Nader is also one of the nation’s most principled champions of civil litigation and the “tort system,” and to an equal degree, critic of “tort reform” laws that make it more difficult for people to sue. In fact, last year he launched an entire museum celebrating the tort system and the right to sue. Yet when it comes right down to it, anti-SLAPP laws are nothing if not a type of “tort reform,” i.e., they make it easier for certain kinds of cases to get thrown out of court. Clearly, bill drafters face real challenges when defining what qualifies as a “SLAPP suit.” No one wants legitimate cases thrown out too. ("Baby with the bathwater" kind of thing.)

Enter corporate America. Let’s just first say this: never underestimate the ability of Big Business to co-op an issue, twist it around to their advantage and make it their own. Unfortunately, this is the lesson of anti-SLAPP legislation in America. Corporations have now completely glommed onto the anti-SLAPP crusade, turning a decent idea intended to protect civil rights plaintiffs, whistleblowers, consumer advocates and other public interest entities, into a weapon that corporations can and will use against them.

The first wind of trouble came when the much-maligned American Legislative Exchange Council adopted a model anti-SLAPP bill at the insistence of then ALEC member, Yelp. ALEC, as we’ve noted before, is “run and funded by big corporations that subsidize the involvement of conservative state lawmakers, who then push for enactment of model bills written by the corporations who pay them.”

Then, the “tort reform” crowd in Congress got their tiny, dirty little hands on the issue. They have constructed a federal bill – H.R. 2304 – that’s even worse than ALEC’s. Their leader is Rep. Blake Farenthold (R-TX), one of the most conservative, anti-consumer and anti-civil justice members of Congress. And tomorrow, the House Subcommittee on the Constitution and Civil Justice is holding a hearing on this bill. Here are a few things to know about it:

• Sixteen major consumer and civil justice groups have sent letters to the committee opposing this bill. This even includes some groups that support the concept of anti-SLAPP legislation – that’s how bad this bill is. Opponents include, among others, Consumers Union (publisher of Consumer Reports), Public Citizen, Earthjustice, National Association of Consumer Advocates, and the Center for Justice & Democracy.
• Among reasons for such strong opposition is this: the bill’s definition of “SLAPP” is so broad that it could apply to almost every civil case filed in state court and could be easily exploited by corporate miscreants and used against those trying to hold them accountable, including whistleblowers. Or as Consumers Union put it, “As the bill is written, we are concerned that its purpose could be turned on its head.”
• The bill contains provisions with which “tort reform” proponents have tried infect many other bills, which are against public policy, and which have so far been stopped. As groups noted in one opposition letter, “The bill creates additional special federal rules and procedures, which many of our organizations have opposed in every other civil justice context. This includes mandatory sanctions, which are contrary to Rule 11 of the Federal Rules of Civil Procedure, and fee–shifting proposals that are against public policy.”
• The bill would preempt state tort laws in all 50 states and would dump into federal court state law cases that have no business being in federal court. Another group letter notes, “Foremost, the bill unnecessarily, and we think unconstitutionally, federalizes state-law claims, allowing defendants to delay litigation by dragging wholly state-law claims into federal court.”

It is telling that the forces behind this anti-SLAPP bill are not the progeny of Ralph Nader. They are primarily media trade associations and Yelp (whose representative testifies in Congress tomorrow.) Facing Yelp and others at the hearing will be Cardozo law professor Alexander A. Reinert, who wrote in his written testimony,

H.R. 2304 takes the rationale behind state anti-SLAPP measures, federalizes it, and then expands the coverage of anti-SLAPP legislation beyond all recognition. What it creates is a tool that is bound to be abused against important litigation, that will burden the federal courts with additional cases and motion practice, and that is almost certainly unconstitutional.

California has had an anti-SLAPP law for many years. But as Professor Reinert notes, “California courts have come to lament the existence of the anti-SLAPP law, observing that the law is being abused by defendants who continually seek to expand the definition of a SLAPP suit.” He then goes on to list “just a sample of the statements of exasperation that California’s judiciary has expressed about the anti-SLAPP law."

I guess we’ll see to whom Congress is listening.