Congress’ new opportunity to protect free speech: Voting to pass SPEAK FREE
As a computer hobbyist 30 years ago, I already could see where this online chat thing was going. Long before the word “internet” became part of the universal parlance, it was clear the kinds of things people were saying and doing on computer bulletin-board systems (BBSs) – from trading gossip and jokes to engaging in full-blown political arguments – would be possible only in a true “free-speech zone.”
So it didn’t exactly surprise me the first time I saw lawsuits threatened based on things said on a BBS. The free expression the internet enables is empowering, but it’s also frequently disturbing. Even today, with the internet now established as central to most Americans’ lives, there still are individuals and companies who’d rather take their critics to court.
In a time of frequent party-line votes, it’s heartening to see the growing bipartisan support generated by the SPEAK FREE Act (H.R. 2304), a bill introduced by Reps. Blake Farenthold, R-Texas, and Anna Eshoo, D-Calif. This legislation would provide needed federal-level protections for individuals and companies sued for stating honest opinions on matters of public import. There’s even a special term for these lawsuits: SLAPP, an acronym for “strategic lawsuits against public participation.” It would be even more heartening to see the SPEAK FREE Act move forward in this Congress’ waning days, or reintroduced early in the next Congress.
SPEAK FREE is not another top-down congressional initiative that aims to fix problems better handled by the states. In fact, the bill’s authors have learned useful lessons from state-level free-speech protections. In particular, 28 states already have passed anti-SLAPP laws, which allow courts to make early determinations on whether a plaintiff is using litigation primarily to suppress or punish speech. More than two decades of such cases have taught us the value of laws that aim directly to protect constitutional interests.
In the 20th century, Congress bolstered Americans’ Fourth Amendment protections with laws governing wiretaps and searches of newsrooms. In the 21st century, we have more than enough evidence from state anti-SLAPP protections that it’s time for Congress to better secure our First Amendment protections, as well. That’s what my colleagues Cameron Smith and Moriah Mensah recommended in a recent paper about existing anti-SLAPP laws in the states, which examined what a federal solution might look like.
Justice Louis Brandeis memorably described the states as “the laboratories of democracy.” We now can say with confidence that the lab results are in and they’re hugely positive. Anti-SLAPP legislation already has demonstrated that Americans shouldn’t have to engage in extended, pricy legal defenses against litigants who want shut down honest criticism. There have been a range of Internet-centered SLAPP cases in recent years. Well-established publications from across the political spectrum, from Forbes to Mother Jones, have been compelled to remove content, rather than defend against libel claims and other suits brought by deep-pocketed plaintiffs.
State anti-SLAPP protections have allowed some newcomers to engage in spirited public debate more freely, as when the startup Zenefits tussled recently with the huge payroll-services company ADP, which Zenefits says is trying to hobble potential new competitors deliberately. ADP’s immediate response to a post on Zenefits’ blog that raised this criticism was to file suit. Fortunately for Zenefits, the case was filed in California, which has one of the America’s oldest and strongest anti-SLAPP laws.
But a case like that might turn out differently if it could be brought in a state like Idaho, which has no anti-SLAPP statute, or New York, which has only a comparatively narrow anti-SLAPP framework. The scope of First Amendment protections ought to be equally broad in every state.
Support for anti-SLAPP laws is fundamentally bipartisan. We’ve seen strong measures enacted both in red states and in blue states, and there’s strong support in Congress for a federal anti-SLAPP law among both Republicans and Democrats. I’m proud to have co-authored a recent letter supporting this effort that was joined by FreedomWorks, TechFreedom, the Competitive Enterprise Institute, Taxpayers Protection Alliance, the Center for Individual Freedom and others.
There is growing recognition that new technologies rapidly create new opportunities for public debate and citizen engagement. The free market also benefits when public expression is protected against needless and vindictive litigation. Empowering consumers to share and compare their experiences with companies and services makes the internet a richer and more informative aggregator of market information.
Citizens rightfully have grown more skeptical of lengthy, complex laws that often have unforeseen consequences. The SPEAK FREE Act is comparatively short and to-the-point, and can be understood even by novices within a few minutes of reading it. But packed into those few words is a powerful message: SPEAK FREE vindicates our longstanding vision of the online world as a forum for free and open public engagement.
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