Asked & Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: I have just been sued for defamation for something I wrote online. I’ve heard “anti-SLAPP” laws can help, but how?

A: As a first step, you should consult a lawyer, and you should do it quickly to ensure you file the appropriate responses with the court on time. If you are not sure where to find a lawyer, you can call the Reporters Committee (800-336-4243). Many law firms will take pro bono cases, but you may have to meet certain requirements to show financial need.

If you live in one of the 27 states that have enacted anti-SLAPP statutes or the District of Columbia (which also has an anti-SLAPP statute), you may be able to resolve the case quickly in your favor, before legal costs become too burdensome.

SLAPP stands for “strategic lawsuits against public participation,” and it refers generally to cases where corporations or developers sue people or organizations in an effort to silence their protests against the company’s activities. So, a developer that wants to build a big-box store might sue local residents who are protesting the development, using the high cost of litigation as weapon to silence them.

It could just as well apply to a high-profile community figure suing a newspaper reporter for being critical of him or her in the hopes a lawsuit will squelch future criticism.

States enacted anti-SLAPP statutes to combat that practice. Anyone from community activists to bloggers and newspaper reporters can be protected by the statutes, and in many states it need not necessarily be a corporation or developer suing but anybody.

According to a typical anti-SLAPP statute, after being served the complaint (that is, being informed that you’ve been sued and why), you will file a special motion to dismiss right away. If the speech was on a matter of public interest, and if the party suing you is not likely to win, then the judge will dismiss the case immediately, before legal costs become burdensome.

Furthermore, according to many anti-SLAPP statutes, if you win your motion to dismiss under the anti-SLAPP statute, the person suing you may have to pay your attorney’s fees and other court costs.

In all of these ways, anti-SLAPP statutes offer strong protections of free speech, and they will likely be your strongest tool in defending a defamation lawsuit.

Q: What records can I get relating to someone’s immigration status or application for citizenship?

A: U.S. Citizenship and Immigration Services (USCIS) manages records related to asylum, immigration and citizenship status. The agency is subject to the Freedom of Information Act and does release information to requesters, but there are two commonly-cited exemptions reporters should be aware of when requesting documents from USCIS: privacy and proprietary information.

The privacy exemption, found in section (b)(6) of FOIA, applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” In the context of immigration records, that means USCIS will redact any information that could identify a living individual.

Practically speaking, therefore, it is often not possible to get a specific person’s immigration file through a FOIA request. However, requesters may avoid the redactions by getting a signed waiver from the individuals identified in the document and submitting that along with the FOIA request. Only those people who specifically waive their privacy rights will appear unredacted in the document. Others who may be identifiable through the information in the file will have their information redacted before USCIS releases the documents. If the person whose file it is does not waive his or her rights, USCIS will not release the file, even in redacted form.

USCIS will release information under FOIA about any individual who is deceased. Requesters do not need waivers to get that information, though if that file mentions people who are still alive, those names and identifying information will be redacted under the (b)(6) exemption.

One less nuanced element of USCIS’s FOIA processing relates to asylum requests. No individual asylum or refugee case information may be released under FOIA. A separate federal statute forbids the agency from even confirming or denying if an individual has filed an asylum application.

FOIA’s exemption for proprietary information, found in section (b)(4) affects what information requesters can get about businesses that apply for particular visas for their workers, or foreign investors who invest in U.S. companies as a step toward immigrating to this country.

Finally, USCIS does keep aggregate data on many subjects, including green card, citizenship and asylum applications. The agency will release that data in response to a FOIA request, but again, journalists should be aware of the form those numbers might take. If any category broken out in the data contains fewer than 10 people, the agency will either not specify the group, or will combine it with other small groups into an “Other” category. This, again, is to comply with the Privacy Act and FOIA’s (b)(6) exemption.

In general, if there’s a question about whether USCIS will release a particular document under FOIA, the journalist should make the request. The agency will then determine on a case-by-case basis what portion of the requested information is releasable.