An Analysis of the 'Free Speech Protection Act' that aims to address Strategic Lawsuits Against Public Participation (SLAPPs)

Raskin, Wyden, Kiley Introduce Bipartisan Legislation Promoting Free Speech, Cracking Down on Frivolous “Strategic Lawsuits Against Public Participation”

Link to announcement: https://raskin.house.gov/2024/12/raskin-wyden-kiley-introduce-bipartisan-legislation-promoting-free-speech-cracking-down-on-frivolous-strategic-lawsuits-against-public-participation

Analysis Summary of the Free Speech Protection Act

The Free Speech Protection Act aims to address Strategic Lawsuits Against Public Participation (SLAPPs) by introducing a federal framework to identify and dismiss such lawsuits. SLAPPs are meritless legal actions designed to silence or intimidate individuals or entities exercising their constitutional rights, such as free speech, petitioning, or participation in public discourse.

Key features of the bill include:

1. Special Motion to Dismiss: Allows defendants to file a motion to dismiss claims they identify as SLAPPs. Courts must stay proceedings until the motion is resolved, and decisions on motions are expedited.
2. Criteria for Dismissal: The motion can be granted if the court determines the claim infringes on the defendant's constitutional rights and fails to present a prima facie case.
3. Protection of Public Concerns: The bill broadly defines matters of public concern, such as political, social, health, or safety issues, ensuring the act applies to cases involving significant public interest.
4. Fee Shifting: If the motion to dismiss is successful, the moving party is presumed entitled to reasonable attorney fees and costs, disincentivizing frivolous lawsuits. Conversely, bad faith motions can result in penalties against the filer.
5. Preservation of Rights: The act explicitly states it does not limit existing remedies or defenses under state or federal law.

Impact on Key Areas

Free Speech

The act strengthens protections for free speech by ensuring individuals or entities cannot be unduly silenced through expensive or time-consuming litigation. By providing a mechanism to quickly dismiss SLAPPs, the law encourages open dialogue and protects individuals engaging in public discourse. However, it may raise concerns about whether legitimate defamation claims or other grievances might be prematurely dismissed under the guise of protecting free speech.

Defamation

The act could impact defamation lawsuits by providing defendants with an additional tool to dismiss claims early in litigation. This may deter individuals from filing defamation cases, especially if the statements in question involve matters of public concern. Plaintiffs will need to meet higher standards of evidence to move their claims forward, particularly demonstrating a prima facie case that overcomes the constitutional protections outlined in the bill.

Internet Publishers

Internet-based publications, social media platforms, and other digital publishers stand to benefit significantly, as they often face legal threats for publishing controversial or critical content. The act's provisions protect them from being dragged into meritless lawsuits aimed at stifling reporting or expression. This could lead to a more robust online discourse but might also result in fewer legal remedies for individuals or organizations harmed by inaccurate or damaging statements.

The Free Speech Protection Act ultimately appears to provide a safeguard for constitutional rights while balancing concerns over abuse of the legal system. However, its application will depend heavily on judicial interpretation and how courts handle motions to dismiss under its provisions.

Link to Bill: https://raskin.house.gov/_cache/files/6/8/68205065-ea91-4326-b1dc-403a18cbb2cc/01FF14FA2CE7C5C507D42626E4D2DF2E.free-speech-protection-act-bill-text.pdf