Anti-SLAPP saves the day

From the Fall 2009 issue of The News Media & The Law, page 24.

Freelance journalist Susan Paterno’s American Journalism Review story about Wendy McCaw’s purchase of the Santa Barbara News-Press — and the subsequent wave of defections amongst the paper’s seasoned editors and writers — mentioned several lawsuits McCaw had filed or threatened to file against her former and current employees and other publications like the Santa Barbara Independent and Vanity Fair.

What Paterno didn’t know was that she would soon be the target of one.

“I was kind of surprised because it had been through so many layers of lawyers — my brother, a contracts attorney, couldn’t believe it,” said Paterno, a professor at California’s Chapman University, recalling the day she received word of the suit. “From the very beginning I always knew she had nothing to sue me about. There was nothing libelous in the story.”

Though McCaw’s company, Ampersand Publishing, sued Paterno on multiple claims, it was mainly for allegedly libelous statements in the article. But thanks to California’s law against Strategic Lawsuits Against Public Participation, or anti-SLAPP law, Paterno was able to obtain a prompt dismissal of the lawsuit last summer.

Anti-SLAPP statutes are meant to protect people from lawsuits of questionable merit that are often filed to intimidate speakers into refraining from criticizing a person, company, or project. Fighting these suits can be a time-consuming and expensive enterprise. Paterno thinks the anti-SLAPP statute saved her from mortgaging her house to pay legal bills, because it allowed her to recoup most of her attorney fees after the suit’s dismissal.

“The law allowed me to avoid what could have been millions of dollars in legal fees,” Paterno said. “I was blessed that AJR was amazing and they picked up every penny of this horrible, frivolous, revenge-driven lawsuit when it was going through the courts.”

Paterno isn’t the only journalist who has used anti-SLAPP laws to have lawsuits over their reporting dismissed. In April, the Wareham Observer in Massachusetts successfully used the state’s anti-SLAPP law to dismiss a town police chief’s defamation suit after the paper published articles and commentary critical of the chief’s official duties.

According to Samantha J. Brown, the legislative director of the Federal Anti-SLAPP Project — a coalition of advocates who push for a federal law to supplement existing state laws — the attorney fees provision is the most important part of any anti-SLAPP legislation.

“The fee provision is what allows someone to even consider going to court in cases where they wouldn’t have an attorney and otherwise would silence themselves immediately,” Brown said.

Generally, anti-SLAPP laws are meant to protect the rights of freedom of speech and to petition the government for redress guaranteed by the First Amendment, and state-level statutes protect those rights to varying degrees.

States that have crafted them most broadly, including California, Illinois and Louisiana, apply the statutes to a wide variety of activities that qualify as petitioning. Louisiana’s Lake Charles American Press, for example, was able to dismiss a suit that arose from its reporting on sales of contaminated fuel. In Illinois, anti-SLAPP laws can be invoked if a lawsuit arises from “any act or acts in furtherance of . . . rights of petition, speech, association, or to otherwise participate in government.”

By contrast, New York’s anti-SLAPP law is narrower and applies only to suits by a plaintiff who is a “public applicant or permittee” seeking “a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body.” The case must also show “action involving public petition and participation.” New York’s statute was used by a judge to dismiss former Democratic Rep. Richard Ottinger’s libel suit against an anonymous commenter on a newspaper Web site. The commenter criticized both Ottinger and his wife after they were accused of bribery and filing fraudulent documents with a zoning board to get approval for a waterfront house.

Some advocates believe that more work must be done to expand the reach of anti-SLAPP legislation — including implementation of a federal law.

“Twenty-eight states have anti-SLAPP laws, of course, that means that 22 do not, and those protections that do exist vary widely,” said Brown, the federal project’s legislative director. “First Amendment rights are guaranteed to everyone, and they shouldn’t vary according to where you speak out or where you are sued.”

As for Paterno, she said she was happy that her case was quickly resolved and hoped it could serve as a reminder that trial judges should dismiss SLAPP suits as swiftly as possible.

“Hopefully in the future, the laws will allow other journalists, nonprofits, activists, and protestors to maybe avoid what I had to go through,” Paterno said.