by Paul Alan Levy
Sports bloggers and others, especially in Washington and New York, have been abuzz over the libel suit filed last month by Washington Redskins owner Dan Snyder over an unflattering article published in the Washington City Paper.
Not content to sue Creative Loafing, the small company that owns the Washington City Paper and free weeklies in a few other cities, Snyder also sued Atalaya Capital Management, a New York-based hedge fund that acquired the chain following bankruptcy proceedings. Snyder’s demand letter to Atalaya (written on Redskins stationery) warned that defense of a libel suit “would not be a rational strategy for an investment fund such as yours” because “the cost of litigation would presumably outstrip the asset value of the Washington City Paper.”
Lawsuits like this one are called SLAPP’s – Strategic Lawsuits Against Public Participation. The suits are not brought to be won on merit, but rather to make the cost of defending speech so high that the speaker has to beg to be released from the suit. At the same time, other would-be critics learn the lesson that criticizing this plaintiff is just too expensive to be worthwhile. The lawsuit itself thus has a “chilling effect” on speech. Snyder’s case is a reminder of why we need a federal anti-SLAPP law.
Knowledgeable pundits have pointed out the weakness of the libel claims. Under the First Amendment, a public figure like Snyder cannot sue for libel unless he can show both falsity and “actual malice” – reckless disregard of the probability that the report was false. But it seems unlikely he can do so.
For example, the article said that Snyder “was caught forging names as a telemarketer,” based on an investigation by Florida’s attorney general that led to a $2.5 million fine for “thousands of instances” in which Snyder Communications “forged customers’ signatures” to switch long-distance telephone providers. Snyder claims this is false because he did not personally forge any signatures, even though his company did. But Snyder of all people should understand the concept of attributing to an owner the bad as well as the good that his company does; in his suit, Snyder uses the same reasoning to claim that Atalaya is responsible for libel committed by a newspaper owned by one of its investments. Nor is Snyder one to keep the personal and the corporate separate – the demand letter preceding his lawsuit, to which the complaint refers as Snyder’s demand, was sent on Redskins letterhead and signed by the Redskins’ General Counsel.
The lawsuit and the demand letter made much of the City Paper’s cover graphic showing him with as a devil with penciled-in horns, moustache and a goatee, which Snyder claims was anti-Semitic. The commentators say it isn’t so, and they have the better of that argument in my view; but the more important question is, so what? If McKenna or the City Paper were anti-Semitic that would certainly be upsetting, but in the United States, unlike some other countries, there is no cause of action for making anti-Semitic remarks or posting anti-Semitic drawings. Indeed, the First Amendment protects the right to publish offensive name-calling, just as it protected Snyder's defense of the racially offensive name for his football team. This is pure theatrics on Snyder’s part; perhaps it also plays into his choice of New York as the venue for his lawsuit.
A second legally irrelevant contention is Snyder’s assertion that the City Paper improperly criticized his wife. The blogosphere generally agrees that the assertion is false, but again it is legally beside the point. Tanya Snyder is not a plaintiff in the lawsuit; and if there is a claim that the City Paper defamed Tanya Snyder, the First Amendment’s “of and concerning” requirement forbids anyone other than Tanya Snyder from bringing suit on that claim.
Several other sources (for example, here and here) have dissected Snyder’s other legal claims, one by one, and shown how weightless they are; I don’t intend to rehearse those arguments here. It should be clear that the lawsuit is wholly meritless; and the overt effort at intimidation in Snyder’s demand letter makes clear what is going on. It is pretty rare for a plaintiff to acknowledge openly the expectation that the threat of litigation expenses should be enough to suppress future criticism, as Snyder’s lawyer did, but there are many cases where the meritless nature of the case and the disparity of resources between the plaintiff and the defendant reveal the true purpose of the litigation.
The Utility of Anti-SLAPP Laws as a Remedy for SLAPP’ed Speakers
Several states have adopted “anti-SLAPP” laws to guard against this sort of deliberate intimidation of speech through costly litigation. Under these laws, judges must consider the merits of the case sson after the complaint is filed, and if the plaintiff cannot present evidence showing a reasonable likelihood of winning, the case must be dismissed right away. Protecting against the use of litigation to impose high costs on speech, the best laws provide that discovery is normally deferred until after the anti-SLAPP motion is decided. If the anti-SLAPP motion is granted, the judge must require the SLAPP’ing plaintiff to pay the SLAPP’ed defendant’s attorney fees. If the SLAPP motion is denied, the SLAPP’ed defendant can get an immediate appeal despite the general rule that denial of a motion to dismiss is not appealable.
There is tremendous variation among state anti-SLAPP laws. In states like California with strong anti-SLAPP statutes, it is easier for individuals and small publications that otherwise could not afford a lawyer to defend themselves. And lawyers are often willing to defend SLAPP suits without full payment in the hope that the court will make the SLAPPing plaintiff pay the speaker’s attorney fees. Just as the attorney fee provisions in the anti-discrimination laws and some other federal statutes allowed some lawyers to create private practices specifically devoted to civil rights enforcement, California’s anti-SLAPP law has enabled some lawyers in private practice to can make a living defending the free speech of ordinary people who cannot afford to pay for representation up-front and by the hour. And, at the same time, the laws discourage SLAPP suits, because lawyers warn their clients of the consequences of filing such suits. We have seen a number of situations in which plaintiffs who wanted to suppress speech that criticized them have avoided bringing such cases in states with strong anti-SLAPP laws.
Why Snyder Sued in New York Instead of DC
Although Snyder, the Redskins and the Washington City Paper are all in or near Washington, D.C., Snyder filed his suit in New York. Commentators have chuckled about whether Snyder expects to find a sympathetic ear among Giants and Jets fans, or whether his real worry is that Washington fans detest him so much that they won’t give him a fair trial. But it is SLAPP law considerations that may have been paramount.
Last December, the D.C. Council adopted a strong anti-SLAPP law. Maryland, where Snyder lives, had adopted one several years ago, although that law is not as strong as DC’s because it requires express showings that the plaintiff sued in bad faith and with intent to inhibit speech. But these laws may be the best explanation for Snyder’s putting his claims in the hands of Giants fans. New York also has an anti-SLAPP statute, but its narrow scope, covering only suits related to petitions or applications to the government and communications about such petitions, means that it would not apply in this case. Of course, Snyder is so wealthy that he does not have to worry about attorney fee awards; but his filing in New York deprives the City Paper of the protection of DC's law, and hence increases the intimidation and punitive value of his suit.
The Federal Anti-SLAPP Solution
In the last Congress, Representative Steve Cohen (D-Tenn.), who wrote Tennessee’s anti-SLAPP law when he was a state legislator, introduced a federal anti-SLAPP bill whose terms were drawn from the best of the state anti-SLAPP statutes. The proposed bill applied the remedies of the early look, the award of attorney fees upon dismissal, and the right to appeal denial of a SLAPP motion that have proved to be such an effective remedy in the states with strong anti-SLAPP laws. The bill also provided that SLAPP’s filed in state courts can be removed to federal court, and includes the exceptions for lawsuits over commercial speech, and lawsuits by state and local governments, that were needed to confine these strong remedies to true SLAPPs. The bill died, but we are hoping to see the same bill reintroduced in the new Congress. The Public Participation Project has been spearheading efforts to push this law through.
Given the portability of SLAPP suits shown by Dan Snyder’s example (see also this recent Virginia lawsuit by a California doctor), Congress should move quickly to adopt this important protection against abusive attacks on free speech.