Among the more obnoxious ways the rich and powerful can intimidate and silence critics is filing what is known as a Strategic Lawsuit Against Public Participation, or SLAPP, whose goal is not to pursue a legitimate grievance but to harass and bankrupt opponents. New York State, long a laggard in putting an end to SLAPPs, finally has a worthy bill waiting only for Gov. Andrew Cuomo’s pen.
Not surprisingly, SLAPPs are a favorite weapon of President Trump. One notorious case was a libel suit Mr. Trump brought against Timothy O’Brien, then a business reporter for The Times and author of a book that said the real estate mogul was worth substantially less than he claimed. Mr. Trump eventually lost, but bragged in an interview that he had achieved his goal: “I spent a couple of bucks on legal fees and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
More recently, a lawyer representing Mr. Trump’s daughter Ivanka Trump and her husband, Jared Kushner, demanded that the Lincoln Project, a coalition made up largely of Republicans who are Never Trumpers, take down its billboards in Times Square in which the two senior Trump advisers dramatize the administration’s failure in combating the coronavirus pandemic. If the ads weren’t removed, warned the lawyer, Marc E. Kasowitz, “we will sue you for what will doubtless be enormous compensatory and punitive damages.”
The Lincoln Project called Mr. Kasowitz’s bluff, and the billboards are still there. But not all defendants in SLAPP cases have the resources to survive a long and costly suit.
SLAPPs have become so pervasive in the era of social media that at least 30 states and the District of Columbia have adopted some form of an anti-SLAPP statute. These laws still allow people, businesses and institutions that have been unfairly maligned to seek legal redress, but they usually require plaintiffs to show there’s a probability they will win. If they can’t, the suit is dismissed, and in many states the plaintiff has to pay the defendant’s legal and other costs.
New York State, despite being home to some of America’s most important media and news organizations, currently has only a feeble law narrowly limited to controversies over zoning approvals and other government permits. The new legislation, written by State Senator Brad Hoylman and Assembly member Helene Weinstein, would protect speech related to all matters of “public interest” and stipulates that this “should be broadly construed.” The courts would also be empowered to award defendants their costs.
Mr. Cuomo shouldn’t hesitate to put his pen to paper and sign the bill. The anti-SLAPP measure is urgently needed to block bullies from weaponizing the courts against free speech. It is also needed to prevent New York from being used for “forum shopping,” whereby abusive plaintiffs file suits in states with weak or nonexistent anti-SLAPP laws.
The New York law would also strengthen the campaign for a federal anti-SLAPP law. Federal courts can rule that state anti-SLAPP laws do not apply to them, giving vindictive plaintiffs another means of assailing their critics. That door should be permanently shut throughout a nation whose Constitution rejects any hindrance to the freedom of speech or of the press.