Saundra McDavid

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Amendment One, Bill of Rights, United States Constitution

Infringements of these rights are occurring all around, so much so that a new term has arose: SLAPP. This is an acronym which stands for Strategic Lawsuit Against Public Participation. When people want to stifle public discourse, many resort to filing lawsuits against those who speak out. Both the government and the business sector are engaging in the filing of meritless defamation and tortious interference claims against individuals who have opposing viewpoints or adverse opinions. The adjudication of these claims often results in a dismissal on the merits, however the defendant faces intimidation and legal expenses along the way. Some defendants choose to simply retract the statements, rather than face a lengthy legal battle. These practices rightly bring outrage when it is a government entity using taxpayer funded attorneys to stifle a citizen’s first amendment rights.

Some legislators have responded by enacting Anti-SLAPP legislation, which would prohibit the filing of these frivolous claims. In an effort to protect free speech across the United States, H.R. 4364 is making its way through Congress. The goal: “To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called “SLAPPs”, and for other purposes.” (H.R. 4364, 2009, Para. 1)

The bill would provide immunity from civil liability of any act of petitioning the government made without knowledge of falsity or reckless disregard of falsity. It also puts a burden on the plaintiff to prove knowledge of falsity or reckless disregard of falsity by clear and convincing evidence. The process to get these claims dismissed will be made easier and faster. In addition the bill allows for attorney’s fees to be awarded the defendant of the meritless claim and prevents the plaintiff from discharging in bankruptcy the fees and costs awarded to the defendant. (H.R. 4364, 2009)

H.R. 4364–111th Congress: Citizen Participation Act of 2009. (2009). In GovTrack.us (database of federal legislation). Retrieved June 10, 2010, from http://www.govtrack.us/congress/bill.xpd?bill=h111-4364

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