Editor’s Note: As a news organization which has in the past been targeted by frivolous litigation from public officials, BeaverCountian.com celebrates Pennsylvania’s passage of legislation designed to protect news outlets as well as individuals who comment about matters of public concern.
For a full explanation about how the new “anti-SLAPP” law will help, we present this editorial by attorney Michael Berry who was instrumental in drafting the statute. Following his remarks, we take a trip down memory lane…
We are blessed to live in a country with strong First Amendment freedoms. Thanks to bipartisan legislation enacted this summer, the people of Pennsylvania now have even more protection when they exercise those freedoms.
For many years, powerful public figures have sought to use lawsuits as a weapon to squelch speech on important public issues. They do so by filing baseless complaints against their critics, recognizing that the cost of defense can be crippling and the threat of a large verdict can deter others from speaking out. These SLAPP suits – strategic lawsuits against public participation – chill citizens from exercising their First Amendment freedoms and stifle public debate.
In July, Pennsylvania enacted a law that seeks to put an end to SLAPP suits. Act 72 builds on the experience of the more than 30 states that already have anti-SLAPP laws, while also accounting for unique features of Pennsylvania’s legal practice.
The law provides broad immunity for people who are sued when they speak out on matters of public concern. It protects the press for its reporting, commentators for their critiques, and anyone else who speaks their mind in print, online, on the air, or anywhere else.
So, the immunity can be invoked if a newspaper is sued for reporting on an issue impacting a local community or editorializing about the actions of a public official. The immunity also can be invoked by a person who is sued for criticizing a political candidate or complaining about a local officeholder.
The law’s protection is straightforward. When a suit seeks to hold someone liable for something that they have written or said about a matter of public interest, the plaintiff must show that the lawsuit has merit. If there is no evidence to support the claim, or if the suit is barred by the law, the case is dismissed.
The law has two other important protections. First, any determination of whether the immunity applies can be appealed immediately. This provides a safeguard for people whose rights to the immunity were denied erroneously. Allowing an immediate appeal ensures that they will not be subjected to the burdens of continuing litigation if the case against them should have been dismissed at the outset.
Second, anyone who is immune from suit under the law is entitled to recover attorneys’ fees and the costs they incur in defending themselves.
The promise of attorneys’ fees is significant. It guarantees that speakers who are forced to defend against baseless claims are not also forced to bear the cost of litigating cases that never should have been brought. They no longer will be out of pocket after defending themselves from baseless claims. The promise of attorneys’ fees also serves to deter people from filing SLAPP suits to silence their critics in the first place. After all, if the suit is dismissed, those people will need to foot the bill for their own lawyer and for the other side’s lawyer too.
Just as importantly, the law includes a provision to make sure it is not abused – if people invoke the law’s immunity frivolously or solely to delay the proceeding, they will be obliged to pay the other side’s attorneys’ fees.
The law also provides for a new motion designed to swiftly decide whether a claim might be meritorious. This procedure would allow courts to quickly dismiss claims that have no likelihood of succeeding, saving both judges and litigants time and expense.
While the motion is pending, other proceedings in the case would be stayed. This pause in the litigation would relieve people subjected to SLAPP suits from the financial, emotional, and other burdens associated with full factual discovery – an expensive process that can take many months or years. Rather than engaging in fact-finding that might not matter to a case’s ultimate outcome, judges and litigants can focus on the key legal issues at the outset of the case.
These key provisions of the law – the new motion and the stay of proceedings – will only go into effect if the state Supreme Court allows them. The rest of the law – the immunity, attorneys’ fees, and immediate appeal – all went into effect as soon as the law was signed by the governor.
The new anti-SLAPP law levels the playing field. It makes sure that potentially meritorious cases move forward, while stopping meritless claims before they get off the ground. With its protections, all Pennsylvanians will be able to speak more freely.
Michael Berry is a partner at Ballard Spahr LLP in Philadelphia.
Editor’s Addendum – A Trip Down Memory Lane:
As a small hyper-local news outlet focused on Beaver County, we have from time to time had the occasion of facing the ire of some who wished we weren’t. In three notable instances, people attempted to use frivolous litigation as a weapon against us.
While we prevailed in each of those cases, the time and resources necessary to defend against such attacks were significant. We firmly believe Pennsylvania’s new anti-SLAPP legislation would have prevented such litigation had it been enacted at the time, and will now protect against such tactics moving forward.
Back in 2013, BeaverCountian.com provided comprehensive coverage of a heated municipal election in Economy Borough. Included in our articles was a complaint filed by the Beaver County and Economy Borough Democratic Committees alleging a political group calling itself The Bipartisan Committee for a Better Economy Borough had violated elections laws.
The “Bipartisan Committee” filed litigation in 2014 against the Democratic parties for making their allegations, and also against BeaverCountian.com claiming it defamed them by simply reporting about the political controversy.
BeaverCountian.com brought in some of the top attorneys in the state and worked with national advocacy groups to mount a defense. After multiple court filings and appearances before a judge, spanning the course of a year, BeaverCountian.com ultimately prevailed and the case was dismissed.
Judge Deborah Kunselman found that BeaverCountian.com’s coverage “gave an even-handed account of the allegations against the Plaintiffs and merely reported on official complaints alleged by Defendants, who were leaders of political organizations. Moreover, the alleged defamatory statements were in public documents that anyone could access.”
We had done our job as a news organization by faithfully telling both sides of the story to keep the voting public informed. This frivolous litigation could have been quickly ended by anti-SLAPP without wasting time or recourses.
– Judge Dismisses Defamation Lawsuit Filed Against Beaver Countian By Economy Borough Politicos
Inspired by the litigation filed by the “Bipartisan Committee”, New Brighton resident Dennis McKee filed a pro se lawsuit against BeaverCountian.com in 2015 alleging the publication infringed on his First Amendment rights by banning him from commenting on articles after he violated acceptable use policies.
The man publicly admitted to his malicious intentions, stating he filed litigation for his own amusement, to further his self-education about the legal system, and to use the costs of litigation to bankrupt BeaverCountian.com so he could start up his own local news site without competition.
Once again, BeaverCountain.com brought in a team of leading attorneys, and once again, the frivolous litigation was dismissed by a judge.
– Lawsuit Against The Beaver Countian And 13 Of Its Website Commenters Has Been Thrown Out Of Court
One year later in May 2016, then county treasurer Connie Javens filed a lawsuit against six anonymous commenters who had posted critical remarks about her on articles published by BeaverCountian.com. Javens issued a subpoena to the site seeking computer records that could be used to identify the individuals who had posted using pseudonyms.
BeaverCountian.com refused to turn over any information, and once against brought a formidable legal team to bear to block the subpoenas. It was the first time in Pennsylvania that a new media reporter invoked a protection of anonymous sources.
An out-of-county judge blocked the subpoenas in 2017, and for the first time in the state, ruled that an online news site such as BeaverCountian.com was covered by its Reporter Shield Law and constitutes a newspaper of general circulation.
Javens’ lawsuit against the anonymous commenters was subsequently dismissed.
Had the anti-SLAPP law been in place, a judge could have been asked to dismiss the suit without the need to first engaged in protracted litigation about subpoenas.
John Paul is an award-winning investigative journalist and founder of BeaverCountian.com.
