Despite the high profile push for a federal shield law and federal FOIA reform – both extremely important legislation that AAN has supported in recent years – it’s always been my personal belief that there is no more important federal legislation for AAN members than possible Anti-SLAPP legislation. While your reporters may be subpoenaed in testify in federal court and/or reveal the identity of a confidential source even when pursuing an completely local story and while they may need to use the federal FOIA to flesh out programs affecting your communities, let’s face it: what you’re really worried about is getting sued. One of the reasons I love working with AAN is that it’s members push the envelope and are not afraid to criticize those in power.

Of course, those in power have the means to fight back in ways that others don’t: including by threating you with expensive lawsuits filed by expensive lawyers if you don’t correct certain aspects of a story or even retract it in full – and then actually filing suit even if there’s no chance of winning. Beyond the expense of defending yourself in court, litigation is a significant drain on your time and a stressful experience all around. It is also quite successful in actually shutting people up who have important things to say.

That’s why “Anti-SLAPP” laws are so important. These laws provide a means for those “SLAPPED” (which technically stands for “Strategic Lawsuit Against Public Participation”) to get the case dismissed quickly and relatively painlessly and inexpensively; sometimes the defendant even gets its attorney’s fees and costs paid for as well. They are responsible for ensuring that important information benefitting the public interest can be published, including:

• A 60 Minutes story about the harmful effects of the chemical alar, used in apple products, which led to a suit against CBS by Washington Apple Growers


• Written statements filed by two local farmers with Nebraska state regulators regarding a corporate farm’s poor environmental record, after which the corporate entity sued the local farmers


• A story by the New York Times and ProPublica about the complete disarray in Louisiana hospitals after a Katrina which led to the deaths of several patients (and a lawsuit by the hospital)

And, of course, there was the completely meritless lawsuit filed by Daniel Snyder, the owner of the NFL team in Washington, DC against the Washington City Paper. Snyder filed the suit after threatening the WCP in a letter which stated:

• 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 that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of the litigation would presumably quickly outstrip the asset value of the Washington City Paper.

A classic SLAPP lawsuit if there ever was one.

So we know Anti-SLAPPs are good. The problem is that they don’t’ exist in all the states – only about 30 states have them. Plus, some state Anti-SLAPP laws aren’t all that strong. And others may or may not apply if you’re sued in federal court under what is called “Diversity Jurisdiction” (when the plaintiff lives in a different state than you and is requesting at least $ 100,000 in damages). D.C.’s relatively new Anti-SLAPP law, for instance, was just held to be inapplicable in federal court.

That’s why AAN welcomes the introduction of the “Speak Free Act” by Reps. Blake Farenthold (R-TX) and Anna Eshoo (D-CA) earlier this week. The bill would create an Anti-SLAPP statute that applies in any state and when you’re sued in federal court because on the basis of an oral or written statement or other expression that was made in connection with an official proceeding or about a matter of public concern (defined as anything relating to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace). Once a defendant meets that threshold, the burden shifts to the plaintiff to prove that he or she is likely to prevail on the merits.

There are accelerated filing deadlines and a strict deadline in which the court must render a decision, plus the possibility of an immediate appeal of that decision, all of which will help keep legal costs and time on court to a minimum. Plus, if you win (which includes the withdrawal of the lawsuit by the plaintiff after you’ve filed a motion to dismiss under this law), you are entitled to litigation costs, expert witness fees, and reasonable attorney fees, which are generally not available to a winning defendant, but which serve as a strong deterrent to the filing of a frivolous defamation lawsuit. This law would be a strong card to play when threatened with legal action.

AAN will fully engage on this bill and we ask that you throw your support behind it as well. Please consider contacting your Representative and asking him or her to support this legislation or, better yet, to sign on as a co-sponsor.

You can find the full text of the Speak Free Act here. A press release issued by Rep. Farenthold can be found here. And a press release applauding the bill’s introduction by the Public Participation Project, a group which exists for the purpose of raising awareness of Anti-SLAPP laws can be found here (Full Disclosure: I’m a member of the PPP”s board).

Of course, you can also contact me at 703-346-0473 or goldberg@fhhlaw.com if you have any questions.