Bipartisan group of lawmakers introduces federal anti-SLAPP legislation

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This month, Sen. Ron Wyden (D-Ore.) and Reps. Jamie Raskin (D-Md.) and Kevin Kiley (R-Calif.) introduced the Free Speech Protection Act, a new federal anti-SLAPP law intended to protect journalists and the public by providing a means to dismiss frivolous lawsuits, including suits alleging defamation, in federal court. Anti-SLAPP laws are intended to prevent strategic lawsuits against public participation, known as SLAPPs, that organizations and individuals file to silence speech — often that of journalists. 

FSPA follows an unsuccessful effort to pass federal anti-SLAPP legislation in the 117th Congress, which we previously supported. 

In a press release on Dec. 5, Raskin stated: “Goliath triumphs over David in our justice system when powerful special interests can silence their critics with frivolous lawsuits against public participation.” Wyden added: “The rich and powerful are all too willing to use the legal system to bludgeon reporters, activists, and whistleblowers with expensive lawsuits, even if the claims have no merit.”  

While 34 states and the District of Columbia have anti-SLAPP laws of some kind, the protections vary significantly from state to state. For example, in some states, like Massachusetts, they only protect defendants from cases brought in retaliation for petitioning the government. In others, such as California, the laws broadly protect speech made in connection with a public issue.

FSPA is largely based on the Uniform Public Expression Protection Act, a model law that has been adopted by nine states and has been introduced in nine others. As we talked about in this newsletter over the summer, UPEPA applies broadly to claims based on an individual’s exercise of their First Amendment rights “on matters of public concern.” When UPEPA applies, defendants have 60 days after a claim is brought to bring a special motion for expedited relief to dismiss the action entirely, which halts all proceedings in the litigation. Moreover, UPEPA provides a means for defendants to recover court costs and attorneys’ fees if the anti-SLAPP motion is successful.  

Importantly, FSPA includes these same provisions, and would allow defendants to end frivolous cases before costly and burdensome discovery. 

Furthermore, because courts across the country disagree about whether state anti-SLAPP provisions apply in federal court, the new bill would ensure protection for defendants in federal cases based on diversity jurisdiction (i.e., cases between citizens of different states) and federal question jurisdiction (i.e., cases arising under the Constitution, laws, or treaties of the United States). This would disincentivize libel plaintiffs from forum shopping and using the federal courts to pursue frivolous actions as a means of suppressing speech and getting around protections provided by state anti-SLAPP laws.

While there are a few differences between UPEPA and FSPA — including that UPEPA provides defendants the right to quickly appeal if their special motion to dismiss is denied, and FSPA contains no such language — a federal anti-SLAPP bill with the aforementioned provisions would still provide significant protections to journalists in federal court facing SLAPP suits. 

The introduction of FSPA is particularly noteworthy given that there have been calls for several years to change defamation laws to make it easier for public officials and public figures to sue journalists and others. For instance, in Florida, lawmakers attempted, but failed, to pass legislation that would have teed up challenges to long-established U.S. Supreme Court precedent and reduced protections for news organizations against meritless defamation suits. Efforts to limit First Amendment protections in defamation law, however, often tend to fail because of bipartisan opposition — which is why FSPA is likewise bipartisan. 

Given that FSPA would serve as a uniform federal anti-SLAPP law that provides broad and useful protections for defendants and can serve as a tool to foster free speech and prevent censorship, it is promising that the proposed legislation has bipartisan support. We will keep a close eye on how it progresses.