Some Promising Anti-SLAPP Legislation

Ohio Sen. Matt Huffman (R) has introduced anti-SLAPP legislation, titled the Ohio Citizen Participation Act, which includes novel protections of anonymous internet speech. If approved by the legislature, it will stand as a new gold standard for anti-SLAPP laws.

SLAPP suits, or Strategic Lawsuits Against Public Participation, refer to a category of vexatious libel or defamation lawsuits intended to chill unwanted speech by subjecting speakers to arduous and costly legal battles. In most cases, plaintiffs have little chance of succeeding on the merits of their claims, and instead hope to force a settlement or deter future criticism by using the legal process as a punishment in and of itself. In response to the censorious threat posed by these suits, twenty eight states, the District of Columbia, and Guam, have passed anti-SLAPP legislation.

Anti-SLAPP laws provide defendants with an expedited dismissal process, allowing them to forestall the often expensive and lengthy discovery process, and introduce extrinsic evidence demonstrating that the speech in question falls under the aegis of the anti-SLAPP statute. While not all statements protected by the First Amendment are shielded by anti-SLAPP laws, most are, and the protections guaranteed by the Citizen Participation Act are particularly expansive. After the introduction of the defendant’s evidence, the burden shifts to the accuser, who must provide admissible evidence that the defendants speech is unprotected, and his suit is likely to prevail. If the plaintiff succeeds, the suit continues as usual, if not, it is dismissed, and attorney’s fees are awarded to the defendant. In the absence of this expedited process, the authors of constitutionally protected statements routinely face years-long legal battles and attendant financial ruin before receiving merely pyric vindication.  

The establishment of these protections alone would be a great boon to the residents of Ohio, however, the Citizens Participation Act goes further in its protection of their liberties. Unlike other anti-SLAPP bills, it protects the privacy of anonymous and pseudonymous speakers by requiring ISPs to notify their customers of any unmasking requests, and allowing speakers to contest attempts to piece their veil of anonymity. Furthermore, when anonymous internet speakers are sued for alleged defamation or libel, they may take advantage of the expedited dismissal process without revealing their identities.

These provisions allow those in vulnerable or sensitive positions to fully exercise their First Amendment rights without fear of censure or reprisal. While anonymous speech has long played an important role in the American public discourse, the internet has simultaneously strengthened and weakened the ability of citizens to speak anonymously. It has all but eliminated the financial barriers to anonymous speech, however, internet communication relies on a group of private intermediaries who have little incentive to weather lawsuits to protect the anonymity of their users. The Ohio Citizen Participation Act ably remedies this situation by providing statutory basis for the contestation of unmasking requests, shielding both the speech and the anonymity of 21st century Silence Dogoods.