Donald Trump has promised that if he becomes president, he’s going to “open up those libel laws so when The New York Times writes a hit piece we can sue them and win money.” To date, he’s already filed six libel suits. Highlights include his recent suit against Timothy O’Brien, author of “Trump Nation,” for asserting his net worth isn’t as high as Trump claimed it is, and toward comedian Bill Maher, who requested Trump prove he’s not the “spawn of an orangutan.”

And lucky No. 7 may be against the NYT.  Today Trump and his lawyers claimed a story about two women who allege sexual assault by the candidate amounted to defamation – a libel claim, to be specific. His lawyers sent a demand letter to the Times this morning.

The type of legal action Trump’s lawyers have filed easily could be classified as a “strategic lawsuit against public participation” or a “SLAPP.” SLAPPs do exactly what they say: stifle free speech. The most common sort of SLAPP suits in the modern age are those filed by business owners against patrons who negatively review them on websites like Yelp.

The possibility of Trump winning this suit is slim, since he has to demonstrate actual malice or reckless disregard on the part of the journalists. Indeed, the Times‘ lawyers already have responded forcefully that if the candidate believes “the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

But these types of suits aren’t actually designed to assert a claim, which only can succeed on the merits. The point is that the cost, time, damage of a lawsuit, lack of transparency and intimidation put defendants – particularly those who don’t have the resources of The New York Times – in a bind. Like patent trolls, SLAPPers have little to lose.

Currently, 28 states have anti-SLAPP laws to combat this type of behavior. And there’s federal legislation moving through the House as of this writing (the bill had a judiciary subcommittee hearing back in June). Introduced by Rep. Blake Farenthold, R-Texas, the Speak FREE Act is modeled on the highly successful California and Texas legislation, which provides defendants legal remedies such as dismissal on the merits, fee-shifting provisions and removal out of state court.

Essentially, this legislation implores a judge to decide whether or not a given suit could succeed on the merits before moving on to the discovery phase. Plus, it’s simple and cost effective. The legislation has been supported by R Street Institute, Yelp, TripAdvisor, CTA and PPI to name a few. Alas, Farenthold has conceded that, if it’s to stand a chance, Congress would need to move quickly.

I think if Speak Free is going to be enacted into law, it’s going to need to be enacted under President Obama… I’m a Trump supporter, but that’s one issue I don’t think we’re going to see eye to eye on.

Defamation suits do serve a purpose. If you have been adequately wronged either in a verbal or written forum, file a suit. But abusive suits that shut down free speech need to stop. Without federal anti-SLAPP legislation, we risk this continued behavior.


Photo by  a katz