Some of us kibitzers in the vexatious defamation lawsuit that Ellora’s Cave filed against Dear Author and Jane Litte back in September 2014 have also been following along with recent developments involving Nevada’s anti-SLAPP Law and a bill that, should it pass, would not only kill that law, but negate many previous protections on lawful, protected speech.
First, a quick overview.
SLAPP means, literally, Strategic Lawsuit Against Public Participation. That is, a suit designed to chill speech and silence critics. In states, like Ohio or Florida, where there are no anti-SLAPP laws, any asshole can hire a hack–or write something like this and file it pro se–and drag any and all critics through months if not years of costly litigation.
Contrary to what TiNut has repeated in her twittrrhea, just because a defamation case is filed and a judge doesn’t dismiss it on the spot, doesn’t mean defamation actually happened.
As Ken White explains, assholes who want to punish their critics using the courts don’t have to provide any evidence of actual, unlawful, unprotected speech:
Imagine I sue you for punching me in the nose, even though you’ve never met me.
Normally I don’t have to put up any evidence at all at the start of the case. I just have to allege facts in the complaint that, if true, mean that I’m entitled to relief. You can’t show up in court and say “wait, it’s not true.” You can only get the case dismissed (through what’s called a motion to dismiss, or in some places a “demurrer”) if it’s legally defective, not factually defective. I can drag you through litigation, including expensive and intrusive discovery.
Later in the case you’ll have an opportunity to file a motion for summary judgment. That’s basically an assertion that I don’t have the evidence I need to win the case. But I can defeat that motion easily with any evidence. The judge doesn’t get to weigh evidence and credibility. If you have ten witnesses who say you didn’t punch me in the nose, and I have my declaration saying you did, then I win the motion and the case goes forward to trial.
So, if a plaintiff is minimally competent and willing to lie, they can usually force a defendant to go through stressful and ruinously expense litigation.
Scary, ain’t it?
Good anti-SLAPP laws protect everyone from vindictive assholes, yet allow actual defamation cases to be brought against miscreants who, you know, actually damage people’s reputation through lies and malice (in the legal sense).
Marc Randazza, who by the way has some pretty impressive credentials, has not only explained in his blog, extensively, why Nevada Senate Bill 444 is a really bad idea. He once again has put his reputation where his mouth is.
Here is his testimony at the Assembly Judiciary Committee:
For romance readers who complain about review sites where only positive reviews are allowed; for any consumer who can’t ever find unbiased, critical reviews of a bit ticket item she’s contemplating buying; for anyone who is afraid to blog honestly about negative experiences lest she be sued for having a fucking opinion…for all of us, this is important.
Here’s a screenshot from Mr Randazza’s blog on what everyone can do to help protect free speech against SLAPPs:
The first link is for this page.
The second link is for this hashtag.
Get involved–it’s in YOUR best interests.