Over the past several decades, a pernicious use of the justice system has developed that poses a serious threat to First Amendment rights. Strategic Lawsuits Against Public Participation, or SLAPPs, are meritless lawsuits that individuals and businesses bring against others who speak out on public issues or communicate with their government. For example, a citizen who speaks out about the threat of contamination from a local factory, or an organization that petitions Congress to strengthen consumer protections laws may be sued for their efforts. Witnesses that the Congress invites to share information about weaknesses in the financial markets, problems in the health care system, or threats to national security, are also vulnerable to a meritless lawsuit, and that vulnerability creates a chill on First Amendment expression.

The Citizen Participation Act H.R. 4364 was introduced last week by Tenn Rep. Steve Cohen, and referred to the House Judiciary Committee for consideration. The CPA would be the first anti-SLAPP law that applies to federal cases, though 28 states have similar statutes. The act would provide immunity for defendants who engage in protected First Amendment activity, and includes a fee-shifting mechanism to discourage frivolous lawsuits.

SLAPPs require significant resources to defend against, particularly when the discovery process is used as an abusive tool to harass and exhaust the resources of a defendant. SLAPPs frequently result in settlements contingent upon the defendant’s retraction or silence, accomplishing by private litigation a ban on speech as effective as any government gag. Judge Nicholas Colabella of New York said of SLAPPs, “short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

The Citizen Participation Act draws from the best of anti-SLAPP protections that twenty-eight states afford their citizens, to provide uniform, comprehensive protection against SLAPPs. The law allows a defendant to bring a special motion to dismiss a lawsuit arising from protected speech and petition, stays the discovery process while the motion is pending, and allows a successful defendant to recover fees and costs after the court finds the suit to be groundless. By providing a uniform level of protection for all SLAPP defendants, the law will help end SLAPP forum shopping and ensure full First Amendment protection in all jurisdictions.

OMB Watch is part of a coalition that has worked with Representative Cohen’s office to introduce this bill, the text and a summary is available here. A wealth of information about the bill, the project, and the coalition is available at www.anti-slapp.org.