By Monica Nieporte
More than half of our country’s states protect people who are engaging in their First Amendment right of Freedom of Speech from becoming targets of meritless lawsuits. Our democracy depends on encouraging public dialogue about community issues. Citizens should be allowed to show up at a local government meeting and express their opinions about social and business issues and their government without retribution. Our democracy also depends on journalists being able to witness that dialogue and report it to their audience.
Monica Nieporte is the President and Executive Director of the Ohio News Media Association.
(Loveland Magazine is a member of the Ohio News Media Association.)
The Ohio News Media Association has been working for the past three years on getting legislation enacted that would provide better protection for citizens and journalists against meritless defamation and libel claims.
Senate Bill 215, introduced this month by Senator Matt Huffman (R- Lima) and co-sponsored by several of his colleagues including Senate President Larry Obhof, will accomplish that.
Strategic lawsuits against public participation (SLAPP) is litigation that is filed accusing a citizen or media representative of defamation or libel even when there is nothing false about the statements and they are clearly opinion. The subject of the remarks knows that he or she will eventually lose the case but files the lawsuit as a tactic to stop the citizen from making further comment or to deter others from speaking out.
Eventually the defendant prevails but only after months or years are spent in court.
Eventually the defendant prevails but only after months or years are spent in court. The determination that the comments were Constitutionally-protected speech comes at the end of that process and meanwhile legal fees continue to accumulate.
Anti-SLAPP laws are designed to quickly dispose of these defamation or libel claims if it is a clear-cut case that the citizen or journalist was engaged in protected speech. The time window of this litigation shrinks from years to months – and contains a “loser pays” provision meaning if the court decides the defamation or libel allegation is without merit, attorney fees for the defendant will be awarded.
This bill was modeled after the Texas and California laws, which are generally accepted as the best of the anti-SLAPP laws.
This bill was modeled after the Texas and California laws, which are generally accepted as the best of the anti-SLAPP laws. As you know, Texas is traditionally a conservative state while California is a more liberal one. This bill enjoys bipartisan support from a diverse coalition including the ACLU, Americans for Prosperity, the Ohio Association of Broadcasters, the Reporters Committee for Freedom of the Press, domestic violence advocacy groups and the motion picture industry.
It is important to note that this bill does not change the legal definition of defamation or libel in any way. If such statements are made or printed, the person who believes they were defamed or libeled still has all of the same remedies available to them to pursue. What the bill does do is prevent people from using the legal system to harass, threaten or financially penalize someone for simply exercising their First Amendment rights. We have had member newspapers targeted by such meritless claims and it has cost their libel insurers hundreds of thousands of dollars to defend a case they were always going to win – it was just a question of how long the plaintiff was going to drag out the case and try to outspend them.
Citizens and government officials who spoke out at a public meeting against a corporation have been likewise frivolously sued.
Citizens and government officials who spoke out at a public meeting against a corporation have been likewise frivolously sued. Domestic violence victims testifying in support of legislation regarding domestic violence laws have been sued for defamation by their abuser. The motion picture industry has even been threatened with lawsuits in cases involving documentaries.
The new law also contains a special provision that provides protection for Ohio citizens in the event the plaintiff tried to “forum shop” and filed the lawsuit in a state without an anti-SLAPP law.
As the bill makes its way through committee hearings, we anticipate some of those who have been targets of meritless defamation and libel litigation to testify about their experience. This will be enlightening anecdotal evidence of the need for an expedited legal process. The bill isn’t being pursued as a reaction to any of those individual situations but rather as a proactive step to make sure Ohio’s legal system has a better mechanism for dealing with these meritless speech-suppression tactics in the future.
Ohio Citizen Participation Act – Key Questions and Answers
What is the Ohio Citizen Participation Act?
Senate Bill 215, commonly referred to as the ‘Ohio Citizen Participation Act’ was introduced in October by State Senator Matt Huffman. The bill has several cosponsors including Senate President Larry Obhof. SB 215 would create a new right for defendants in a defamation case to seek a dismissal of the case if they were exercising their First Amendment right to free speech.
Why Does Ohio Need This Law?
The United States and Ohio Constitutions protect the right to free speech, however that does not mean citizens and members of the media are fully protected. These individuals and outlets can be the targets of ‘strategic lawsuits against public participation’, or SLAPPs. Ohio needs an anti-SLAPP law to ensure anyone targeted for exercising their First Amendment rights is protected.
Who Supports the Ohio Citizen Participation Act?
There are a number of advocates, coalitions, and businesses who support this important legislation. These proponents span the political spectrum and a wide range of industries. Supporters of the Ohio Citizen Participation Act include ACLU, Common Cause Ohio, Americans For Prosperity, Ohio Association of Broadcasters, Motion Picture Association of American, YELP, and Ohio Domestic Violence Network. Many SLAPP cases impact citizens more than media, so everyone should care about this important issue.
How Many States Have Enacted Anti-SLAPP Laws Similar to the Ohio Citizen Participation Act?
More than 30 states have some form of anti-SLAPP law—the two states who are considered to have the strongest laws are California and Texas. The Ohio Citizen Participation Act is modeled after these states. States spanning the political spectrum, from all corners of the United States, have enacted anti-SLAPP laws.
How Does the Ohio Citizen Participation Act Work?
SB 215 creates a new definition for “protected communications”, basically any speech covered by the First Amendment. If someone is sued for defamation and they believe their speech, words, actions, or written comments were protected speech and covered by the First Amendment, then they would file a special motion to strike. A judge would review the claim, stay discovery except for cause to evaluate the merits of the motion, and render a decision. Both parties retain their right to appeal the decision to a higher court.
What is the Impact of the Ohio Citizen Participation Act?
Under current law, a judge’s decision on whether speech is constitutionally protected comes at the end of the case, which can be several years after it is filed. Given that the speech in question is protected under the First Amendment, the defendants often prevail. However, by the time a resolution is reached the defendant will have incurred hundreds of thousands of dollars in legal fees. Under this new law, defendants have a right to have a judge decide whether the speech is protected at the beginning of the case, not the end. That could allow cases to be resolved in months rather than years, thereby saving the defendant money and clearing the court’s docket for more worthy cases.
How Does the Ohio Citizen Protection Act Impact Existing Defamation Laws?
Simple, it doesn’t. SB 215 does not change existing laws against libel and slander. This is about protecting the First Amendment and ensuring people who speak out on matters of public interest are not unfairly targeted.
