Stop bad-faith lawsuits
You probably think that if you speak out honestly on a matter of public concern, the First Amendment protects you fully. In New York, sadly, that isn’t quite true.
That’s because this state doesn’t adequately shield citizens from harassing lawsuits that big-money interests might file in an effort to squelch debate. The state Legislature has a chance to fix that problem before it adjourns this month, but so far it’s unclear if the bill, which has previously passed the Assembly, will even come up for a vote in the Senate.
The lawsuits in question are called SLAPP suits — strategic lawsuits against public participation. They may be filed by politicians or developers or anybody else who can afford to spend hundreds of thousands of dollars to shut down controversy. SLAPP plaintiffs know they’re unlikely to win their case, since the Supreme Court has made it clear that open debate is protected by the First Amendment. But Slapp-happy plaintiffs know that the fear of having to go to court — and risk the high cost of a legal defense — will shush people who might otherwise stand up to them.
Sometimes it’s a candidate who files a SLAPP suit. Right now, for example, a small TV station in Rhinelander, Wis., is being sued by Donald Trump’s campaign after it aired an ad that was critical of the president’s weak response to the coronavirus. The ad is still running on stations owned by big companies, which suggests the Trump team chose to pick on a small station without big financial resources for legal defense in order to scare off others from airing the ad. Eventually, the little TV station will win the case — but at what cost?
New York has had an ANTI-SLAPP law for 25 years, but it is so weak as to be almost a sham because it applies only to disputes over real estate developments, zoning and similar matters. It needs to be widened to cover all matters of public interest.
Key to discouraging frivolous SLAPP suits is a provision in the bill requiring a judge to shift the cost of defending such a lawsuit to the plaintiff if the court finds that the case was brought in bad faith. SLAPP defendants shouldn’t have to pay to avoid being victimized by deep-pocketed plaintiffs.
This isn’t just about helping TV
stations and newspapers, though protecting the watchdog role of the local media is a value we hope citizens would embrace at a time when the digital revolution has caused chaos in the news industry. Beyond that, though, the broader bill that’s now pending would protect nonprofit groups, small business owners, political candidates, filmmakers, public officials and ordinary citizens who want to speak up — so that they aren’t risking financial ruin by doing so.
New York lags behind 30 other states that already have protected their citizens from such frivolous lawsuits. New Yorkers shouldn’t be more at risk of financial ruin than other Americans when they engage in the robust public debate that is essential in a democratic society.