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Why We Need Federal Legislation To Protect Public Speech Online

May 4, 2015

There needs to be a nationwide baseline, not just a patchwork of state laws, to protect people from censorious lawsuits when they post critical reviews of merchants or service providers.

Imagine that a patient has endured a terrible visit to the dentist. Disturbed by the ordeal, she goes online and posts a review, providing a factual account of her experience as a warning to future patients. Soon after, the patient receives a letter from the dentist’s lawyer threatening legal action if she does not immediately take down the post. Scared that she may have done something wrong, and worried about the cost of going to court, the patient quickly deletes her review. Not only has this patient had her voice unfairly silenced, but many potential patients will not be able to benefit from her experience to choose a better dentist.

The type of lawsuit this patient is being threatened with has come to be known as a strategic lawsuit against public participation, or SLAPP, a term coined in the 1980s by two University of Denver law professors. A SLAPP effectively censors public speech by invoking the court system to intimidate critics. Faced with the time and attorney’s fees involved in defending against such a lawsuit, the easier path for a defendant often is to retract an unflattering statement about a merchant or service provider, even if the statement is true.

This paper provides an overview of the many ways in which SLAPPs are being used, and it explains how they undermine constitutional rights and harm the public interest. The paper then analyzes the existing patchwork of state-level legal protections against SLAPP claims and concludes it is insufficient. To remedy the problem, ITIF recommends that Congress pass a federal anti-SLAPP law that creates a baseline level of protection for citizens’ basic rights of petition and free expression.

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