Protecting Free Speech From Getting SLAPPed
1/7/2019
By Rep. Russ Diamond (R-Lebanon)
“I disapprove of what you say, but I will defend to the death your right to say it.” - Evelyn Beatrice Hall, The Friends of Voltaire (1906)
There is nothing that unites Americans of all political stripes quite so much as the right to free speech. It was critical in gaining our independence from tyranny. The founders enshrined it in the very First Amendment to the United States Constitution. It remains a modern-day sling by which contemporary Davids can hope to defeat Goliaths. From free speech, great ideas and movements are often born.

Imagine yourself speaking out against a powerful concern, private or quasi-public, for the good of your community. Perhaps you post criticism on Facebook or Twitter, write letters to the editor, or testify at a public hearing. Or maybe you operate a consumer review website or launch new forms of digital news media.

In 2019, there is no king to execute you if you speak the “wrong” way, but opponents of free speech did not disappear with the founding of our nation. Instead, they employ modern-day tools to silence critics. This often takes the form of what’s commonly known as a SLAPP (Strategic Lawsuit Against Public Participation). A SLAPP is a lawsuit filed against a person or organization for statements made, or positions taken, in connection with matters of public interest or regulation.

A SLAPP plaintiff typically cites otherwise legitimate legal theories such as defamation, invasion of privacy, nuisance or conspiracy. But the true purpose of a SLAPP is to chill free speech and to deter or silence critics by burdening them with mounting a legal defense requiring a significant expenditure of time and financial resources, even when the plaintiff knows he or she cannot prevail on the merits of the case.

In response to such abuse of our legal system, I am introducing the Free Speech Protection Act (House Bill 95) in the Pennsylvania House of Representatives. My anti-SLAPP legislation addresses this very important public policy need in a common sense, balanced way.

If you find yourself hauled into court by what you believe is a SLAPP, my legislation would give you the right to file a special Motion to Dismiss to ask the judge to declare that your speech was constitutionally protected. If the judge agrees, the lawsuit is quickly killed and you will be awarded attorney fees, costs and damages related to the SLAPP. House Bill 95 also contains a “SLAPP-back” provision which allows legitimate plaintiffs to proceed with legitimate claims. As such, my Free Speech Protection Act only targets frivolous lawsuits against free speech for swift dismissal.

Anti-SLAPP legislation has wide appeal and does not break down along political or ideological lines. Twenty-seven other states – ranging politically from Texas to California – have broad anti-SLAPP statutes. In 2000, Pennsylvania established limited protections from SLAPPs, but only in the narrow area of environmental law. Broader anti-SLAPP legislation similar to House Bill 95 passed the Pennsylvania Senate by wide margins during the last two legislative sessions.

Speech isn’t free at all if you go bankrupt paying an attorney to protect it. Our court system should not be so easily available to Goliaths for the purpose of bullying average Davids into silence with SLAPPs.

Constitutional guarantees alone do not always provide enough protection of our freedoms. Pennsylvania – the Cradle of Liberty and the Birthplace of Independence – must set the highest standard in the nation when it comes to protecting First Amendment rights. The Free Speech Protection Act would go far in protecting the right of all Pennsylvanians to speak out on matters of public interest.

I urge every Pennsylvanian to contact their state representative and senator and ask them to support House Bill 95, the Free Speech Protection Act.
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