UPDATE: The House Judiciary Committee plans to hold a hearing on June 22, 2016, on the SPEAK FREE Act. This comes a year after 33 organizations, including EFF, sent a letter in June 2015 to the House Judiciary Committee leadership urging them to move the SPEAK FREE Act as quickly as possible. Supporters of the bill are now seeking SLAPP victims to sign a letter to the House Judiciary Committee Chairman. If you have been a victim of a SLAPP, please consider sharing your story and signing the letter.



A bipartisan group of representatives, including Reps. Blake Farenthold (R-TX) and Anna Eshoo (D-CA), recently introduced the SPEAK FREE Act of 2015 (H.R. 2304), a bill that would help protect victims of Strategic Lawsuits Against Public Participation, also known as SLAPPs.

Plaintiffs who bring SLAPPS are not primarily interested in winning the lawsuits. Instead, their goal is to harass, intimidate, and ultimately silence critics through the drama, cost and time-consuming nature of litigation. Anti-SLAPP laws provide defendants with a procedural mechanism to quickly dismiss the case and, often, to obtain attorneys fees, thereby creating a disincentive for plaintiffs to file harassing lawsuits that target speech.

EFF has followed for a long time the problem of SLAPPs in the online space, including against speakers who wish to remain anonymous. There are all kinds of SLAPPs brought against all kinds of defendants. In one case, EFF defended the creator of the online comic The Oatmeal after he was sued for defamation for criticizing the rival humor website FunnyJunk.

The most significant aspect of the SPEAK FREE Act is the breadth of its applicability. The bill would authorize the transfer of cases originally brought in state court to federal court. This “removal” authority would be beneficial to defendants who are sued in state court in the 22 states that do not have an anti-SLAPP law, as well as in states with weaker anti-SLAPP laws. Authorizing the removal of cases to federal court would be a powerful means of enabling SLAPP defendants to invoke the federal procedural defense created by the SPEAK FREE Act.

A federal anti-SLAPP law would also significantly advance the free speech interests of defendants originally sued in federal court. A federal anti-SLAPP law is needed because state anti-SLAPP laws do not apply to cases in federal court based on federal law. For cases in federal court that include some or all state law claims, there is a split in precedent: the DC Circuit, for example, said that DC’s local anti-SLAPP law cannot be applied to cases in federal court that are based on state law; whereas, other circuits have said that state anti-SLAPP laws can be applied to state claims in federal court cases. A federal anti-SLAPP law would apply to all relevant cases filed in (or removed to) federal court.

Once a case is in federal court, the SPEAK FREE Act would allow a SLAPP defendant to quickly end the case by filing a special motion to dismiss. Importantly, the bill would also provide protection for a SLAPP defendant who wishes to remain anonymous by authorizing the filing of a motion to quash a plaintiff’s request for the defendant’s personally identifying information (such a request is usually sent to an online service provider).

In the special motion to dismiss, the defendant would have to make “a prima facie showing that the claim at issue arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern.”

A “matter of public concern” is broadly defined as an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. The intent is to protect a wide variety of speakers, including online reviewers who find themselves as defendants in the typical modern SLAPP.

In order to overcome the motion to dismiss and enable the case to move forward, the plaintiff would have to demonstrate that “the claim is likely to succeed on the merits.”

The judge would be able to consider the “pleadings and affidavits stating the facts on which the liability or defense is based,” similar to the summary judgment standard in federal court. The judge would also be permitted to order targeted discovery if needed to decide the motion to dismiss, but full discovery would be paused (“stayed”) during the consideration of the motion.

If the defendant wins the special motion to dismiss, the judge would be required to dismiss the case with prejudice (the plaintiff cannot file the case again) and award the defendant reasonable attorneys fees, litigation costs, and expert witness fees. However, if the defendant loses the motion and the judge finds that it was “frivolous” or was “solely intended to cause unnecessary delay,” the judge would have to award reasonable attorneys fees, litigation costs, and expert witness fees to the plaintiff.

The judge would be required to rule on the special motion to dismiss within 30 days of the motion being briefed or argued. The idea is to force a speedy resolution when a case implicates free speech interests. The party that loses the motion would be permitted to immediately appeal the decision.

The bill includes some exceptions where a defendant would not be permitted to file a special motion to dismiss the case: when the plaintiff brings a claim in the public interest; when the plaintiff is the government in an enforcement action; and when the defendant is a business being sued for speech about its product or service or that of a competitor (such as false advertising).

A federal anti-SLAPP law would be an important addition to existing constitutional and statutory law that protects free speech online, including the Supreme Court’s creation of the higher actual malice standard under the First Amendment for allegations of defamation of public officials and public figures; courts’ application of the First Amendment to protect anonymous speakers; and Section 230, which largely protects Internet intermediaries from being held liable for illegal content posted by their users.

EFF applauds the bipartisan effort of the representatives who introduced the SPEAK FREE Act. We hope Congress will quickly act on this important legislation.

Disclosure: I am on the board of directors of the Public Participation Project, which advocates for a federal anti-SLAPP law.