A recent blog post by Aaron Krowne, castigating the rejection of an anti-SLAPP motion filed by his company ML-Implode.com as "bizarre ruling" and "blatant miscarriage of justice," has gained wide circulation on the Internet. Judge Deborah Chasanow of the United States District Court for the District of Maryland refused to grant a motion to dismiss, filed under Maryland's anti-SLAPP law, a libel suit brought against his company by individuals and entities who were criticized in an article published on the ML-Implode blog. The article said that the plaintiffs, a company arranging FHA loans in conjunction with the Penobscot Indian Tribe, were engaged in fraud.
Although one can understand Krowne's dismay at the economic impact of the adverse ruling — he indicates that his company will now have to file for bankruptcy — it appears to be that the problem is not with the ruling but with Maryland's anti-SLAPP statute itself. As recited in the opinion, Maryland defines a SLAPP as a suit that was "[b]rought in bad faith" against the party exercising free speech rights, Maryland Code, Courts and Judicial Proceedings § 5-807(b)(1), and was "intended to inhibit the exercise of [free speech] rights," § 5-807(b)(3). The statute then allows a motion to dismiss only against "an alleged SLAPP suit." § 5-807(d)(1).
The wording is a bit odd, but Judge Chasanow apparently read the statute to allow dismissal as a SLAPP only if the suit is, in fact, a SLAPP (that is, if it was brought in bad faith); it is not enough that the suit is "an alleged SLAPP." And it is surely hard to establish the absence of any genuine issue of the fact that a plaintiff has bought the action in bad faith. Krowne relies on the fact that the same judge denied a motion for a preliminary injunction as the outset of the case, and that, in reaction to the news article, an individual plaintiff sent an intemperate and vulgar rant complaining about alleged untruths in the article and threatening to sue for libel if the article was not taken offline (See exhibit F of the document linked above). Neither strikes me as sufficient evidence of bad faith to command summary judgment on that factual issue. Indeed, it appears that Krowne may have overestimated the extent to which the trial judge, whose denial of a preliminary injunction seeking a prior restraint was cautiously worded to leave open the question of whether damages or even an injunction might be awarded on a fuller record, was rejecting the plaintiffs' concerns about the blog article.
Rather than complaining about the messenger, Krowne should be directing his ire at the statute on which ML-Implode based its motion. A SLAPP statute that depends on a finding that the suit was brought in bad faith is nearly worthless. After all, if the case is brought in bad faith, it is subject to an award of attorney fees under one of the standard common-law exceptions to the "American Rule" that the parties to litigation bear their own attorney fees. Indeed, although it is often tempting to file a motion under an anti-SLAPP statute instead of a simple motion to dismiss or for summary judgment, when the anti-SLAPP statute applies to a narrow set of circumstances, it may be unwise to make the motion solely under the SLAPP statute instead of just under Rule 12 or 56; I confess to having once made that mistake myself. (I have not analyzed whether ML-Implode would have had a good summary judgment motion)
Rather than showing flaws in the ruling, this incident reminds us of the urgent need to adopt a federal anti-SLAPP statute, because all state anti-SLAPP laws are not alike. Some, like the California statute on which the federal bill is modeled, provide strong protection against weak suits over the exercise of free speech rights. California courts have rejected both bad faith and "intent to chill" requirements. The proposed new federal law would provide better protection for defendants like Krowne's company. The proponents of the bill (here is the Citizen Participation Act as introduced) have been working hard to get it right. They need our support.