This week, Congressman Jamie Raskin (D-MD), Congressman Kevin Kiley (R-CA), and Senator Ron Wyden (D-OR) introduced the Free Speech Protection Act, an important bipartisan bill to protect the right of citizens, journalists, and activists to participate in public debates about issues that are important in their communities. This legislation would help to end the use of “strategic lawsuits against public participation,” or SLAPPs, in federal courts. 

SLAPPs are an abusive tactic designed to silence public debate. The nonpartisan Uniform Law Commission describes SLAPPs as the use of the civil litigation system “not to seek redress or relief for harm or to vindicate one’s legal rights, but rather to silence or intimidate citizens by subjecting them to costly and lengthy litigation.”

SLAPPs take advantage of the high costs and emotional toll of being sued. People who file SLAPPs do not even need to win their case to silence their opponents. Regardless of whether the court eventually dismisses the case, the victims must often suffer through years of litigation with the threat of public humiliation, wasted time, and significant economic loss hanging over their heads. Many victims feel compelled to sign away their constitutional rights in settlement agreements just to end the litigation.

The Free Speech Protection Act – which has been years in the making – is being introduced as a marker bill in late 2024 in order to kickstart discussion before being reintroduced in the next congress. If passed, the legislation will provide federal courts with a way to quickly identify and throw out SLAPPs while keeping safeguards in place to protect plaintiffs who are using the courts to seek access to justice. In this article, we take an in-depth look at the legislation and the impact it could have.

Anti-SLAPP laws tend to have overwhelming bipartisan support.

Anti-SLAPP laws are one of the most important ways to deter the use of SLAPPs. Currently, 34 states and the District of Columbia have these laws in place; most have passed with overwhelming bipartisan support. In 2022, the Public Participation Project, a nonpartisan free speech organization, reviewed the voting records for state anti-SLAPP laws and found that all but four passed with unanimous support or minimal opposition.

To end the SLAPP threat, we need universal coverage of SLAPP laws across all state and federal jurisdictions.

However, the current coverage of anti-SLAPP laws is insufficient to stop the use of SLAPPs. At the state level, existing laws vary in scope and quality, leaving some of the most vulnerable community leaders, activists, and journalists without coverage. The Uniform Law Commission is helping to fix this problem. In 2020, the Commission adopted a model state anti-SLAPP statute and is advocating for its adoption across the country. This effort has received impressively broad bipartisan support.

Yet there is no federal anti-SLAPP statute that provides consistent protection across federal courts. Most federal circuits have no SLAPP protections whatsoever. A handful of federal circuits allow state anti-SLAPP statutes to apply in diversity jurisdiction cases, but even those courts do not have protection in federal question jurisdiction cases. Having universal coverage is important because many SLAPP filers are currently able to evade state anti-SLAPP protections by filing in federal court.

The Free Speech Protection Act follows the same general approach used at the state level but with some important modifications.

Anti-SLAPP laws generally have three goals: (1) protect SLAPP victims by allowing courts to rapidly identify and dismiss these attacks in order to minimize the damage they cause, (2) help victims to recover the legal costs of defending against the SLAPP, and (3) deter future SLAPPs by imposing consequences on SLAPP filers and reducing the effectiveness of this tactic. 

Like most state anti-SLAPP laws, the Free Speech Protection Act allows defendants to file a special motion to dismiss early in the civil litigation process in order to minimize the costs imposed by the SLAPP. The court reviews the motion on an expedited basis. The court also stays discovery while the motion is being considered in order to avoid an invasion of the SLAPP defendant’s privacy. In most cases, a defendant who wins the motion can recover the cost of attorney’s fees from the plaintiff.

This process is based on the Uniform Law Commission’s approach and will look familiar to lawyers who have litigated SLAPP cases at the state level. However, the Free Speech Protection Act contains some important modifications, which are discussed in more detail below.

In order to be consistent with the Federal Rules of Civil Procedure, a federal anti-SLAPP law needs to balance plaintiffs’ and defendants’ rights.

An anti-SLAPP motion for federal courts needs to align with the Federal Rules of Civil Procedure (FRCP). The courts and Congress developed the FRCP through a robust process that is based on the principle of fairness – the notion that the civil litigation process does not provide an inherent advantage to plaintiffs or defendants. 

The challenge with anti-SLAPP laws is that they are designed to benefit only defendants. To navigate this challenge, the Free Speech Protection Act builds on, rather than replaces, the protections already provided in the FRCP. The legislation includes, for example:

• A safe harbor for plaintiffs who inadvertently file claims that bear the hallmarks of a SLAPP (although abuse of the safe harbor can still be subject to Rule 11 sanctions).

• Rebuttable presumption of fee-shifting, rather than mandatory fee shifting, as an additional safeguard to ensure that plaintiffs whose claims are dismissed under the anti-SLAPP motion have an opportunity to show that their claims were not intended to be abusive.
• Reliance on the federal court system’s appeals process rather than creating a separate interlocutory appeals process. 

Almost every state anti-SLAPP law provides the parties with a right of interlocutory appeal. If the lower court errs, SLAPP defendants do not have to wait until the end of the litigation to appeal a denial of their anti-SLAPP motion – by the time that litigation has run its course, the harm caused by the SLAPP is already irreparable. The Free Speech Protection Act, in contrast, relies on existing federal case law. Different federal circuits take different approaches, but some federal SLAPP defendants would be able to obtain immediate appeals based on 28 U.S.C. 1292(b) or the collateral order doctrine if their case raises important legal questions. 

As the legislation advances, members of Congress might need to explore the question of interlocutory appeals in more detail, assessing how likely it is that federal district courts will err in their rulings on anti-SLAPP motions, and striking a balance between competing interests. A balanced approach would allow the federal court system to quickly correct any errors made at the district court level before SLAPP defendants suffer too much harm, while preserving the integrity of existing appellate procedures and minimizing the additional burden placed on federal appeals courts’ already-crowded dockets.

The Free Speech Protection Act includes additional safeguards to distinguish between SLAPPs and meritless cases filed in good faith.

Most state anti-SLAPP laws have a broad scope that goes well beyond the commonly understood definition of SLAPP as a form of abusive, retaliatory litigation. State anti-SLAPP laws provide comprehensive protection for SLAPP defendants, but defendants in other First Amendment cases use them widely, as well.

There is a difference between “meritless cases that are filed in good faith” and “meritless cases that are abusive.” State anti-SLAPP laws do not necessarily make that distinction. Instead, existing anti-SLAPP laws in the United States treat all meritless cases the same without looking at any telltale signs of whether the litigation is actually “abusive.” 

The legislators who first drafted anti-SLAPP laws had practical reasons for blurring this distinction. Because SLAPPs masquerade as legitimate lawsuits, it is difficult to craft a law that weeds out only abusive lawsuits. It would be unfair and counterproductive to force SLAPP victims to demonstrate the plaintiff’s abusive intent in order to have the claims dismissed – at minimum this would require lengthy and expensive discovery that would undermine the purpose of an anti-SLAPP motion. 

As a result, most anti-SLAPP laws permit some collateral damage – some plaintiffs who did not actually file SLAPPs have their lawsuits punished as SLAPPs. 

But this approach is worrisome from the plaintiff’s perspective. State anti-SLAPP laws that punish meritless cases brought in good faith can deter certain types of public interest litigation. Courts regularly dismiss lawsuits for being meritless. Everyday citizens and members of poorer communities who want to hold wealthier, better-resourced individuals and corporations to account might not do so, out of fear of having to pay for their opponents’ legal fees if their case is found to be meritless. At a Congressional hearing on SLAPPs in 2016, for example, a legal scholar described the potential deterrent effect of anti-SLAPP laws on civil rights cases.

Some recently adopted state anti-SLAPP laws, such as Washington’s and Texas’s, have started to take an approach that balances the rights of plaintiffs and defendants. Another common law jurisdiction, the United Kingdom, also announced in 2022 that it would be using a balanced approach to address SLAPPs: “We believe this strikes the right balance – properly identifying SLAPPs, while allowing genuine claims to continue, and deterring those who seek to exploit our courts with action deliberately designed to ramp up costs and waste time.”

Likewise, the European Union’s 2024 anti-SLAPP directive distinguishes between cases brought in good faith and bad faith, applying the protections to “court proceedings which are not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalization of public participation.”

In federal courts, a balanced approach is consistent with the underlying principles of fairness in the Federal Rules of Civil Procedure. The Free Speech Protection Act allows dismissal of claims under the anti-SLAPP motion regardless of whether there is evidence of abusive intent. However, the legislation includes several measures to minimize collateral damage on plaintiffs who have brought genuine claims:

• Uses a “rebuttable presumption” of fee shifting, rather than mandatory fee shifting, which provides the plaintiff who loses an anti-SLAPP motion with the opportunity to show that they did not have abusive intent.
• Includes exemptions that carve out protections for certain types of public interest claims, so that plaintiffs in these cases do not have to worry about anti-SLAPP penalties if the court determines their claims to be meritless.

The choice of exemptions is ultimately one of policy judgment. Different stakeholders will have different perspectives on which types of public interest claims are likely to be deterred if they are left unprotected. As this legislation proceeds, members of Congress will undoubtedly debate this list of exemptions in more detail.

This legislation helps to correct the effects of a federal circuit split on anti-SLAPP laws.

The purpose of the Free Speech Protection Act is to provide a floor, not a ceiling, for anti-SLAPP protections. Many states, such as California and Texas, already have strong and widely respected anti-SLAPP laws.

There is currently a circuit split among federal courts on the question of whether state anti-SLAPP statutes apply in federal diversity jurisdiction cases. The First, Second, and Ninth circuits consider portions of state SLAPP statutes to be substantive (because they protect First Amendment rights) and therefore applicable in federal diversity cases. In contrast, the Fifth, Seventh, Tenth, Eleventh, and D.C. circuits consider state anti-SLAPP statutes to be entirely procedural (because they involve civil litigation procedures) and, therefore, not applicable in federal diversity cases. The other circuits remain undecided.

Several litigants have petitioned the Supreme Court to resolve the circuit split. Most recently, in 2023, private prison corporation CoreCivic Inc. petitioned the Court on this question with regard to a SLAPP that it brought against socially responsible investors at Candide Group LLC. As with previous petitions, the Court declined to take this case.

Rather than resolve the circuit split, the Free Speech Protection Act addresses the underlying issue of how to provide anti-SLAPP protections across all federal courts without preempting state anti-SLAPP laws that already apply in federal diversity cases. The legislation includes a savings clause that says: “Except as provided for in this chapter, nothing in this chapter shall reduce or limit any substantive claim, remedy, or defense to a SLAPP under any other Federal law or under the laws of any State or locality.”

The savings clause would ensure that anti-SLAPP protections exist across federal courts:

• In federal circuits that have ruled that state anti-SLAPP laws are substantive, the courts would apply any existing state anti-SLAPP laws and, in some cases, would bolster these protections above current levels.
• In federal circuits that have ruled that state anti-SLAPP laws are procedural, those state anti-SLAPP laws would still not apply in federal diversity cases. However, the federal legislation would apply and provide strong protections where there currently are none.

Why EarthRights International supports the Free Speech Protection Act

EarthRights supports this legislation because a core part of our work is to protect environmental defenders worldwide. Around the world, environmental defenders face higher levels of retaliatory attacks, ranging from assassinations to judicial harassment, than almost any other category of activist, reformer, or journalist. 

In the United States, we are members of the Protect the Protest coalition, which was created in 2018 in response to several high-profile SLAPP cases targeting environmental organizations and activists. We described several of these cases in our 2022 analysis, The Fossil Fuel Industry’s Use of SLAPPs and Judicial Harassment in the United States. 

But this legislation is not just for environmentalists. Community leaders, activists, journalists, and everyday citizens across the political spectrum rely on their First Amendment rights to speak up about important issues. The Free Speech Protection Act will help ensure that people can speak up and participate in decisions that affect their lives without fear of being silenced by the nation’s wealthiest and most powerful people. For this reason, we are committed to working with First Amendment champions across the political spectrum to ensure that this important bill becomes law.

We encourage members of Congress to support this legislation, both now and in early 2025 when the bill will presumably be reintroduced in the new congress. 

Note: This article is based on an analysis that we published in 2022 when Representative Raskin introduced an earlier version of this legislation.