SLAPPing the First Amendment in the Face: Ohio's Need for Anti-SLAPP Legislation

freedome of speech"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter." – George Washington

The rights to speech, press, and petition are enshrined in the First Amendment to the United States Constitution. In fact, the United States Supreme Court has characterized the right to petition the government for a redress of grievances as "a fundamental principle of our constitutional system."[1] Nevertheless, individuals and community groups are often attacked for exercising these constitutional rights, the subjects of legal actions known as strategic lawsuits against public participation, or "SLAPPs." Generally, a SLAPP is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. In order to protect citizens from these suits, twenty-nine states and territories in the United States have enacted some type of anti-SLAPP legislation -- laws meant to shutdown such litigation quickly and provide remedies from SLAPPs.[2] Ohio, however, has enacted no such legislation.

What is a SLAPP?

A SLAPP is "'a civil suit . . . filed against nongovernmental individuals and groups because of their communications to the government . . . on issues of some public or social significance.'"[3] Plaintiffs do not file SLAPP actions with any real expectation of success on the merits, but rather, they seek to chill, intimidate, or punish citizens, who have exercised their constitutional rights by,

"[R]eporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations."[4]

Regardless of the outcome, SLAPP plaintiffs accomplish their goals if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism.

SLAPPs "'masquerade as ordinary lawsuits' but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so."[5] The difficulty, of course, is that plaintiffs do not present themselves to the court admitting that their intent is to censor, intimidate or silence their critics. Instead, SLAPPs take the form of a variety of lawsuits, including actions for defamation, invasion of privacy, nuisance, or intentional infliction of emotional distress. However, neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity that triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.

Ohio's Need for anti-SLAPP Legislation

Anti-SLAPP legislation is meant to protect First Amendment rights, including free speech, assembly, press, and petition. To achieve this goal, the majority of states and territories in the United States has enacted "anti-SLAPP" laws to shutdown and provide remedies from SLAPPs.[6] Under most such statutes, the person sued makes a motion to dismiss the case because it involves speech or petition on a matter of public concern. The plaintiff then has the burden of showing a probability that he will prevail in the suit -- meaning he must make more than allegations of harm and actually show that he has evidence that can result in a verdict in his favor. If the plaintiff cannot meet his burden, then many of the statutes award remedies to the prevailing defendant.[7]

The Ohio General Assembly has not yet chosen to enact anti-SLAPP legislation; thus, Ohio courts are constrained when it comes to recognizing SLAPP actions.[8] Recently, though, one Ohio appellate court recognized the need for Ohio to enact anti-SLAPP legislation:

"Ohio [needs] to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech. These suits, referred to as strategic lawsuits against public participation ('SLAPP'), can be devastating to individual defendants or small news organizations and act to chill criticism and debate."[9]

In accordance with other anti-SLAPP legislation across the United States, support is growing in Ohio for legislators to enact anti-SLAPP statutes to protect citizens from those who stifle First Amendment rights through costly, time-consuming, and potentially reputation-damaging litigation.

What Might Ohio's Anti-SLAPP Legislation Look Like?

The difficulty in drafting anti-SLAPP legislation, and in applying it, is creating an approach that affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid, good faith claims. Therefore, any Ohio anti-SLAPP legislation must be specific as to its applicability, as well as to how courts can weed out SLAPPs from legitimate claims and what remedies should be available to prevailing SLAPP victims.

For example, California's anti-SLAPP legislation "was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation."[10] Courts in Georgia, Massachusetts, New York, Rhode Island, Louisiana, and Nevada have also noted their respective statutes' foundations in First Amendment values.[11] Thus, it is important for an Ohio anti-SLAPP statute to make explicit its applicability to specific individuals, activities, and subject matter. Generally, Ohio legislators should consider adoption of language similar to other states' statutes, protecting acts in furtherance of the right of free speech, or petition in connection with an issue of public concern, including statements or petitions before an official proceeding, or in connection with issue under consideration by government body.

Further, any Ohio anti-SLAPP legislation should account for a means for defendants to dismiss quickly the SLAPP by establishing a shifting burden of proof (described above), as seen in most of the existing anti-SLAPP statutes, as well as remedies for the prevailing defendant in a SLAPP action. For example, many statutes provide for a "SLAPPBack," which allows a SLAPP defendant to recover compensatory and punitive damages, in addition to attorneys' fees and costs, upon an additional demonstration by the defendant that the SLAPP was commenced or continued for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting, the free exercise of speech, petition or association rights.[12]

The rights granted by the First Amendment are the fundamental principles of our constitutional system and should be protected at all costs. If the purpose of a SLAPP is to drag outspoken individuals to court and bury them under a pile of attorney's fees and embarrassment until they cry "uncle!" and agree to be quiet, then the countervailing purpose of effective anti-SLAPP legislation should be to make the consequences of losing sufficiently severe that abusive plaintiffs think twice about bringing the SLAPP in the first place.


[1] New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710 (1964) (This "constitutional safeguard, we have said, 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'"), quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304 (1957).

[2] The states and territories that have passed anti-SLAPP legislation are Arizona, Arkansas, California, Delaware, Washington D.C., Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Washington.

[3] Lightborne Publ'g, Inc. v. Citizens for Cmty. Values, S.D. Ohio No. 1:08-cv-00464, 2009 U.S. Dist. LEXIS 28098, *29 (Mar. 20, 2009) (citation omitted).

[4] Id.; Fisher v. Lint, 868 N.E.2d 161, 165 (Mass. App. Ct. 2007); George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5 (1989).

[5] Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.2003), cert. denied, 541 U.S. 1085, 124 S.Ct. 2812 (2004).

[6] There is no federal anti-SLAPP law. The extent to which state laws apply in federal courts is unclear, and the circuit courts have reached different conclusions.

[7] E.g., Arkansas (AR Code Ann. §§16-63-501 – 16-63-508 (2005)), Delaware (DE Code Ann. tit. 10, §§ 8136 – 8138 (1992)), Washington D.C. (Anti-SLAPP Act of 2010, Law 18-351), Hawaii (HI Rev. Stat. § 634F-1 – 634F-4 (2002)), Nebraska (NE Rev. Stat. §§25-21,241 – 25-21,246 (1994)), Nevada (NV Rev. Stat. §§ 41.635 – 41.670 (1993)), New York (N.Y. C.P.L.R. 70-a & 76-a (2008); N.Y.C.P.L.R. 3211), Utah (UT CODE ANN. §§ 78B-6-1401 – 1405 (2001)).

[8] AVB Props., LLC v. Chesler, 9th Dist. Lorain No. 05CA008702, 2006-Ohio-4306, ¶ 18 (declining to reverse a trial court's grant of a directed verdict on a SLAPP cause of action, noting that the "Court takes no stance on whether SLAPP actions are cognizable under Ohio law"); Tri-County Concrete Co. v. Uffman-Kirsch, 8th Dist. Cuyahoga No. 76866, 2000 Ohio App. LEXIS 4749, *19 (Oct. 12, 2000) ("The Ohio General Assembly has not yet chosen to enact anti-SLAPP legislation, and this court is constrained from recognizing such an action at this time.").

[9] Murray v. Chagrin Valley Publ'g. Co., 8th Dist. Cuyahoga No. 101394, 2014-Ohio-5442, ¶ 40.

[10] Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.2001).

[11] EarthResources, LLC v. Morgan Cnty., 638 S.E.2d 325, 329 (Ga.2006); N. Am. Expositions Co. Ltd. P’ship. v. Corcoran, 898 N.E.2d 831, 835 (Mass.2009); Yeshiva Chofetz Chaim Radin, Inc. v. Vill. of New Hempstead, 98 F.Supp.2d 347, 360 (S.D.N.Y.2000); Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 752 (R.I.2004); Lee v. Pennington, 830 So.2d 1037, 1042–1043 (La.Ct.App.2002); John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276, 1282 (Nev.2009), cert. denied, 560 U.S. 939, 130 S.Ct. 3355 (2010); Carson Hilary Barylak, NOTE: Reducing Uncertainty in Anti-SLAPP Protection, 71 Ohio St.L.J. 845, 847-848 (2010).

[12] Arkansas (AR Code Ann. §§16-63-506), Delaware (DE Code Ann. tit. 10, § 8138), Hawaii (HI Rev. Stat. § 634F-2(9)), Minnesota (MN Stat. §554.04(2)(b)), Nevada (NV Rev. Stat. § 41.670(2)), New York (N.Y. C.P.L.R. 70-a), and Rhode Island (R.I. Gen. Laws § 9-33-2(d))) all provide for SLAPPBacks.

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Matt Bruce |