State by State, We’re Making Progress Against Anti-Speech Lawsuits

The First Amendment grants us all the right to say our piece. The government can’t shut down our rights to speak out, protest, and publish. At EFF, we’ve been making sure that we have strong First Amendment rights in the online world for more than 30 years. 

Government repression isn’t the only threat to free speech, though. Well-funded corporations and individuals have been able to abuse our court system to quash the constitutional rights of those they disagree with, by filing Strategic Lawsuits Against Public Participation, otherwise known as SLAPPs. These lawsuits aren’t meant to win on the merits—they’re meant to put financial pressure on a defendant, thus quashing their constitutional rights. 

EFF supports action to limit these harassing lawsuits, including passing strong anti-SLAPP laws at both the state and federal level. While California has strong anti-SLAPP protections, many other states don’t. In 2018, we joined forces with other civil society groups to create Protect the Protest, an anti-SLAPP task force to fight against SLAPPs. 

Since then, awareness of the SLAPP problem has grown. In 2020, the Uniform Law Commission published its Uniform Public Expression Protection Act (UPEPA), a model anti-SLAPP bill for states to follow. 

Now, EFF has joined with civil society groups from across the political spectrum to endorse UPEPA. These groups cover a wide range of interests, but we agree on this principle: our courts should be focused on resolving disputes, and should not be hijacked to stifle the right to free expression.

We’re joined on this letter by the ACLU, Institute for Justice, Public Participation Project, Reporters Committee for Freedom of the Press, and other free speech groups. The letter is also supported by business groups including the National Association of Broadcasters, the Motion Picture Association, and the International Association of Better Business Bureaus. 

Since 2018, we’ve seen considerable progress in fighting SLAPPs. In 2019 Colorado passed a strong anti-SLAPP law. In 2020, New York greatly expanded its anti-SLAPP protections.  Washington followed with a version of UPEPA passed in 2021. This year, both Hawaii and Kentucky have passed laws based on UPEPA. Five more states—Indiana, Iowa, Missouri, New Jersey, and North Carolina—have anti-SLAPP bills currently under consideration by their legislatures. 

Our letter outlines several factors of an effective anti-SLAPP law. These laws apply broadly to expression on matters of public concern, in any forum. They require plaintiffs to show they have a legitimate case early on in litigation. If the defendant loses the anti-SLAPP motion, they have the right to an immediate appeal. And in cases where a judge finds that a defendant has been the victim of a SLAPP, that defendant is entitled to an award of costs and attorney fees. 

If your state doesn’t have a strong anti-SLAPP law, it’s a good time to contact your state representatives and tell them you want one. And we’ll continue to push for protection at the federal level, as well. 

You can read the full letter here.