On this last episode, we look back on 23 years of joyous, difficult and always informative conversation.
What do Republican Congressman Devin Nunes and actor Johnny Depp have in common? They both filed defamation claims in Virginia last year.
Their cases have been categorized as Strategic Lawsuits Against Public Participation, or SLAPP. Critics say the suits seek to silence free speech and cause financial strain on the defendant.
Republicans and Democrats in Virginia are seeking to crack down on SLAPP suits. Bills working their way through the House and Senate would strengthen the state’s anti-SLAPP law.
Produced by Ashley Lisenby
- Alison Friedman Executive Director of International Corporate Accountability Roundtable, the Secretariat of The Protect The Protest Task Force
- Joe Meadows Litigation Partner, Bean, Kinney & Korman in Arlington, Va.
KOJO NNAMDIYou're tuned in to The Kojo Nnamdi Show on WAMU 88.5, welcome. Later in the broadcast the new national ambassador for young people's literature Author Jason Reynolds joins us to discuss "Stamped" his latest work. But first Strategic Lawsuits Against Public Participation known as SLAPP suits are often drawn out in court over several weeks or months and can be costly to defendants.
KOJO NNAMDISome high profile people from other states have filed their defamation complaints in Virginia in the last year. Critics of SLAPP suits say that's because Virginia's anti-SLAPP laws are too weak. New bills making their way through the State House and Senate would strengthen that law. Here to explain what SLAPP suits are and how Virginia could be cracking down on them is Alison Friedman, Executive Director of International Corporate Accountability Roundtable and the Secretariat of The Protect The Protest Task Force. Alison Friedman, thank you for joining us.
ALISON FRIEDMANThank you for having me.
NNAMDIAlso with us is Joe Meadows. He is the Litigation Partner at Bean, Kinney & Korman in Arlington, Virginia. Joe, thank you for joining us.
JOE MEADOWSThank you for having me on the program. My dad listens to your show every day.
NNAMDII hope he's listening today and feel free to call, Dad. Have you filed a defamation suit in Virginia? What were you hoping to achieve? 800-433-8850. You can send us a tweet @kojoshow or email to email@example.com. Are you the defendant of a defamation suit? How has defending yourself been a hardship? You can also go to our website kojoshow.org ask a question or make a comment there. The number again 800-433-8850.
NNAMDIIn 2018, Republican Congressman Devin Nunez of California sued the newspaper company McClatchy in Virginia for millions of dollars for defamation. And in 2019 sued Twitter and subpoenaed others over statements on a social media account that he said were harmful to his reputation. Actor Johnny Depp is another high profile person from outside Virginia, who has filed a defamation suit there. Joe Meadows, why are these cases considered SLAPP lawsuits?
MEADOWSWell, SLAPP, the Strategic Lawsuit Against Public Participation most often is in the form of a defamation suit and people argue that SLAPP suits are designed to censor, silence, intimidate critics as opposed to asserting a valid claim for defamation.
NNAMDIHow are they different from other kinds of defamation suits?
MEADOWSWell, some would argue that a SLAPP suit is designed to silence someone's speech as opposed to asserting a valid claim for defamation and to make the other side spend a lot of money in court that could drag on for a long time. Of course there -- depends on what perspective you're coming at. From some people's perspective there is a place to bring defamation suits to defend your name, brand or reputation. And then there's also a place for freedom of speech and asserting your rights under the First Amendment.
NNAMDIVirginia has become associated with SLAPP tourism. What is the state's current anti-SLAPP law?
MEADOWSWell, the current law is fairly limited. Its scope covers issues of a public interest or public or official proceedings. There are no procedures to quickly end a defamation suit. And that's why you have legislation with the Virginia General Assembly trying to update that. And Alison knows a fair amount about that.
NNAMDIWe'll talk a little bit more about that in a second. What other states have lax SLAPP laws like Virginia?
MEADOWSAbout half the states have anti-SLAPP laws and it depends. Some are limited. Some are strong. I think the one that's being considered with the General Assembly right now in Virginia is along the lines of D.C.'s. D.C.'s is fairly strong. California, Oregon they have very strong anti-SLAPP laws. And then you have some jurisdictions that they're weak or no anti-SLAPP law at all. For example, Maryland's is fairly limited. West Virginia is either non-existent or in case law.
NNAMDIWell, Democratic Delegate Schuyler VanValkenburg talked with us about why he wanted to sponsor his bill.
SCHUYLER VANVALKENBURGOne was that I'm a civics teacher and, you know, to mind the most important thing that makes a democracy thrive is, you know, citizen participation. And so some of the things that drive me are, you know, voter access and issues like this where people's speech rights are being infringed on their ability to participate in the public sphere. And then, you know, take that kind of philosophical belief and mix it with the fact that a lot of these SLAPP suits are happening in Henrico County, which is what I represent, you know. We had a joke with a lawyer that this is the keep Judge Marshall of the Henrico Circuit Court out of the national news bill, because you've got SLAPP suits for people like Devin Nunez happening in our circuit court.
SCHUYLER VANVALKENBURGAnd so those two things kind of made me -- when I realized there was this coalition and I wanted to get together. And so we've decided to put a bill in and we've been working -- oh my gosh. I want to say it's almost 30 groups to try to get this thing in a good posture. And try to get it passed so that Virginia stops being a home of SLAPP tourism.
NNAMDIDelegate Schuyler VanValkenburg, the Democrat, on his bill -- his anti-SLAPP bill in the Virginia legislature. Comments or questions, give us a call 800-433-8850. Or have you filed a defamation suit in Virginia, what were you hoping to achieve? Alison Friedman, you along with Protect The Protest and other organizations advocating for stronger anti-SLAPP laws have helped the legislation that just passed from the Virginia House of Delegates to the Senate, the VanValkenburg bill. How does this bill help to clarify what a SLAPP suit is and what protections it would bring?
FRIEDMANThank you. So I think the important distinction between SLAPP lawsuits versus, you know, legitimate libel defamation and other uses of the court system. And SLAPP suits are fundamentally about payback. They're meritless cases that have no real standing and the goal of them is to tie people up in court. Take them through and invasive discovery process and kind of take advantage of an imbalance of power. And while the Devin Nunez cases and the Johnny Depp cases have gathered the news headlines. The reality is the vast amount majority of SLAPP lawsuits are really targeted to the not famous and the not followed.
FRIEDMANAnd these courageous people who come forward and speak up in the public interest and then are having to face real costs to their daily lives and their future by being tied up in court with something that ultimately will go their way, but they can never make up the attorney's fees and the lost time around it. And so for -- we think it's important for Virginia, which has become kind of a SLAPP tourism mecca to put in strong protections that enable people when they are slapped to get these cases thrown out of court quickly. And not tie up the court system and taxpayer dollars and further undercut free speech by the chilling message that if you speak up and tell the truth you could be tied up in court for years.
NNAMDIIndeed and that as you said has a particularly hard impact on people who are not wealthy who are not notorious who are not public figures. But talk a little bit more about the discovery process and why it can take so long.
FRIEDMANSo states with strong anti-SLAPP statutes allow for what's called the stay of discovery where they rule on the underlying issues. And SLAPPs as Joe I think wisely stated, you know, the issue of crafting a good policy necessary involves a balance of both ensuring that those cases that are brought exclusively as bullying tactics are taken out. But that legitimate cases have their day in court. And so the importance of having a strong anti-SLAPP statute that allows a judge to rule quickly on whether there are merits to this claim or not before a SLAPP target is tied up and turning over all of their emails and everybody they've worked with.
FRIEDMANI think, you know, we're increasingly seeing non-profit organizations and individual protesters getting targeted with SLAPP lawsuits. And the SLAPP lawsuit is being used as a way to find out everybody they've ever worked with and when you're dealing with imbalances of power, the way you combat them is telling the truth and working together. And SLAPP lawsuits are an attack on that.
NNAMDIThere's also a companion anti-SLAPP bill, Alison, that passed through the Senate last week. What other protections would that measure put in place?
FRIEDMANThis is an interesting time to be having this conversation, because we think the component parts of a strong SLAPP statute are in both bills. They're just not in the same bill. And so what comes out of conference will really, you know, speak to how many protections Virginians have. What we'd like to see is the narrow definition that was passed in Delegate VanVulkenburg's bill that talks specifically about both what a SLAPP is and what it isn't. And the special plea in the Senate bill that enables judges to hear early on about, you know, the motivations and the facts in the case to determine whether or not this is a SLAPP.
FRIEDMANAnd secondarily the mandatory transfer of attorney's fees is really critical to ensuring that people, who are targeted with SLAPP lawsuits can get the defense and support they need to be able to address these issues as they arise.
NNAMDIWhat are some of the challenges in passing this legislation?
FRIEDMANWell, Virginia's legislative cycle is short. There are -- I think they had to hear 2500 bills in three weeks, which doesn't necessarily lend itself to the nuance and the balance and the focus that crafting a strong anti-SLAPP statute requires. We're lucky here in that we have talented lawyers, delegates and senators, who have experience, and The Protect The Protest Coalition, which is, you know, 28 social justice organizations who have deep experience on a range of different states and know what makes for a strong law. But it's a challenge in the timeframe we have.
NNAMDIWell, with so many issues on the Democratic agenda passing in Virginia because the Democratic Party now holds the majority was it a surprise that this issue apparently has bipartisan support?
FRIEDMANI don't -- I try not to be surprised when there's a good result that comes out. I think we need that. But look, you know, SLAPP lawsuits go to the heart of every fundamental Democratic value, right? The idea that if you see something wrong you can speak up, and the idea that the courts are available to people to access justice. And I think at a time when ranker is high the opportunity to come together on what I would argue is the basic scaffolding of our democracy is welcome and has been welcomed across the aisle.
NNAMDIHow about you, Joe, surprised?
MEADOWSNo. I'm not surprised given how the political makeup now is of the Virginia General Assembly. I think the struggle here from a legal standpoint is they're already -- how the Virginia civil system works. Normally discovery continues along a case even if certain pretrial motions are filed. You don't have summary judgment to end a case early in Virginia. There is a push to get to a trial rather soon in many jurisdictions within one year of when you filed a lawsuit. So you already have structures in place that when you try to bring in an anti-SLAPP law that may interfere with some of the structures that are already there it's challenging. It's like a square peg in a round hole at least in Virginia.
NNAMDIGot to take a short break, when we come back we'll continue this conversation about the anti-SLAPP bills currently in the Virginia General Assembly. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're discussing so called anti-SLAPP bills before the Virginia legislature since Virginia has become a kind of go to state for people who want to file defamation lawsuits. We're talking with Joe Meadows. He is the Litigation Partner at Bean, Kinney & Korman in Arlington. Alison Friedman is the Executive Director of the International Corporate Accountability Roundtable and the Secretariat of The Protect The Protest Task Force. Let's go to the phones. Here is Lee on the Eastern Shore in Maryland. Lee, you're on the air. Go ahead, please.
LEEYes, thank you very much, Kojo, and Alison and the other gentleman present. But not to go into any kind of detail, but I think with the explosion of these social platforms and the simple fact that they're so easily accessible within seconds to say whatever anybody wishes to say to large groups of people that I don't know. It seems to be toward the end of this couple of decades into this century is getting bigger and bigger. And I think it needs to be addressed. And I think the laws need to be strengthened and not unstrengthened. I think that people need to be held accountable for what they can do to individuals, who don't have Facebook, Twitter, Instagram and, you know, the evils that come to people's thinking not thinking before they speak or have something to say about others.
NNAMDIThank you very much for your call, Lee. Joe Meadows, how do social media and online blogs complicate the issue of defamation?
MEADOWSThe context of social media has a major impact in defining whether certain false statements are in fact factual and actionable. You can bring a claim for defamation or whether or not the context of social media has turned a factual statement into something that's a protected opinion under the First Amendment. So it's a big issue that we're seeing in cases today and with the admin of social media that really actually goes back 20 years. So it's not something we're talking about that happened just yesterday.
NNAMDIWhat is the Electronic Free Frontier Foundation or EFF and what role does it play in all of this?
MEADOWSAnd Alison probably knowns a little bit more about them than I do, but they are an organization that are very much on the side of free speech on the internet and making sure things are open for ideas and thoughts to be expressed without threat of frivolous lawsuit.
FRIEDMANSo the Electronic Frontier Foundation is a member of The Protect The Protest Task Force. I think one thing I want to be really clear about is strong anti-SLAPP statutes do nothing to roll back, you know, access to justice around legitimate defamation and libel claims whether they happen in real life or on the internet.
FRIEDMANThe reason our coalition came together was we were seeing a rise in cases that range from, you know, there were nine citizens in northern California, who testified in front of their city council objecting to a corporation taking their water and selling it to a water bottling company. When the city council voted with the residents both the city council and the residents were sued for, you know, hundreds of thousands to millions of dollars.
FRIEDMANThe city council wound up paying $600,000 just in legal fees to defend itself. We're talking about sexual assault or domestic violence survivors, who come forward and file a claim, you know, petition for a restraining order and are then slapped with a defamation suit. We've seen this with Black Lives Matter activists and, you know, protestors for the Dakota Access Pipeline, who were then sued. There was an indigenous woman and Green Peace, who were sued under RICO arguing that coordination of protests was somehow a violation of the racketeering statute. I'm not a lawyer, but I've watched the Godfather. I know that that's not what RICO is for. And so these are the types of free speech activities where we feel like there need to be stronger protections.
NNAMDIOnto the phones again. Here is Helga in Rockville, Maryland. Helga, you're on the air. Go ahead, please.
HELGAYes, so, you know, I called in, because I've experienced this personally. A few years ago my husband filed a civil suit to the tune of $28 million against me. And at the same time we had two family court proceedings. One in Frederick County where the case remained, but he filed the exact same pleading in Montgomery County all in a pursuit to try to bleed me out financially, and litigation abuse is a form of domestic abuse. I really wish it were included in that definition because, you know -- so these three cases went on. If I had not had a pro-bono attorney to help me through what was first this circuit court case to the tune of $28 million and then when it was kicked out of that court he took it to the court of special appeals. So I had a pro-bono attorney that just dealt with the court of special appeals. Their estimated pro-bono value was over $130,000.
NNAMDIWow. Care to comment on that, Joe Meadows?
MEADOWSWhile I don't know what the actual lawsuit was about.
MEADOWSOr what the claim involved, but I sympathize with some of these stories. If you think about it, though, principles of defamation and defending reputations they go back a long time, back to the Roman times. At the same time principles of free speech they also go back a long time to the Roman times too. So how do you balance these two things? And that's the struggle that we face all the time in the legal system. And Alison is seeing in the Virginia General Assembly right now.
NNAMDIThank you very much for your call, Helga. 800-433-8850 is our number. What role do you think social media should play in censoring content to protect certain groups, 800-433-8850. The Trial Lawyers Association of Virginia has spoken out against the VanValkenburg bill, why would some trail lawyers believe this bill is a bad idea? First you, Alison.
FRIEDMANWell, I think the bill is a good idea. So I don't want to presume to speak for the trial lawyers. What we know is over 30 groups across the political spectrum have come forward and said, these are protections we need for our democracy. I understand that there is a balancing act between, you know, ensuring that illegitimate cases get thrown out of court early and legitimate cases are able to go forward. And trial lawyers are -- basic skillset is to be able to argue both sides of any debate. I'll let them speak for themselves. But it think the VanValkenburg bill combined with the best aspects of the Senate, you know, does craft that balance and will protect Virginians and our Constitution.
NNAMDIJoe, same question to you. Trial Lawyers Association coming out against you, you're the lawyer here.
MEADOWSYes. But certainly I'm not a member of that group and I don't speak for them. I can imagine, though, that any changes that would lengthen how long a case can go or that could shortcut the ability to get to trial would be something that they would not be for. And in Virginia like I said, you have procedures that are designed to get to get to a trial early to allow discovery even while you have pretrial motions being filed. The argument being that if you have a trial coming up pretty soon that may force the parties into a settlement much earlier than if you were in another jurisdiction where a trial may be two, three, four years away.
NNAMDIHere now is Karl, who is in Haymarket, Virginia. Karl, you're on the air. Go ahead, please.
KARLGood afternoon, Kojo. Excellent show. I'm just not really familiar with the terminology. But I've been in situations similar to that where the objective is to basically bankrupt the person that's trying to bring suit and the lawyers know this. The legal system knows this. The politicians know this. And the people involved should or need to in the name of justice for starters call it what it is. Now what they might be able to do is just a suggestion that came to mind for me is grade or rate cases that are being put before the court. You do can do something as simple as an A, B, C, D classification for the court for the court system. Or what you could do is have the person filing the suit they could -- that would be the opposite of the point I'm trying to make. But do you understand where I'm going? But you get the gist of what I'm trying to say, correct?
NNAMDII think what you're trying to say is that there should be some kind of point system some kind of rating system that's put in place in the anti-SLAPP law. Is that what you're saying?
KARLYou know, when you hear certain laws that are brought up and they're tied up in court for years, you say to yourself when you hear it on the news, what the hell are they doing this for? You know, and then we know it's either to break the party or there's another issue associated with it to bankrupt the person, so they can't continue the litigation through the expenses. But then the attorneys should also have some liability in this, because they know what they're doing in the process.
NNAMDIJoe Meadows, do you understand exactly what Karl is talking about?
MEADOWSI think in general I do. I think that's kind of hard to figure out how you would legislate that much less enforce it by a court when a lot of this is very subjective. But I will say one thing about what the caller said from lawyer's perspective. And I have represented defamation plaintiffs and I have represented defamation defendants, both sides. We already have ethical rules in place where we're supposed to on behalf of our clients file cases in good faith and without the intent to harass or intimidate. Court systems have sanctions in place for bad behavior by lawyers or clients. So there are already systems in place to prevent some of the abuses that we're already hearing about. And, of course, in half the states you have anti-SLAPP laws. And you add that on top and that's another mechanism as well.
FRIEDMANI would just add that one of the issues that anti-SLAPP statutes seek to address is most of the remedies for bad faith activities happen after the trial. And the injustice in SLAPP lawsuits again these are meritless cases that win not by ultimately winning in court, but win by tying somebody up in court by taking them through an invasive discovery process, by, you know, the subpoenas of associates, by never knowing when this is going to end. And so remedies at the backend don't really address the impact of SLAPP lawsuits whereas, you know, the preemptive motions the mandatory shifting of attorney's fees those types of things actually wind up stopping the threat and the benefit to the bullies of being able to wage these cases.
NNAMDIHere now is Matthew in Cambridge, Massachusetts. Matthew, you're on the air. Go ahead, please.
MATTHEWHi, thanks so much. Yeah, I'm the CEO of a human rights organization called Fortify Rights and we're working in Thailand, Myanmar, Bangladesh, Malaysia. And I just wanted to add that, you know, this an issue that we're encountering in Southeast Asia. SLAPP cases are a tool that various forces are using to silence civil society. Right now our senior human rights specialist, Puttanee Kangkun is facing 28 years in prison and several thousand dollars in fines for a series of tweets and Facebook posts that she put online supporting other human rights defenders who are facing SLAPP cases from a poultry company in Thailand.
MATTHEWAnd we've seen firsthand how these cases are meant to divide civil society. It's working unfortunately to great effect in Southeast Asia particularly Myanmar and Thailand. And it distracts human rights defenders from their work. And I just wanted to add and I'd love to hear other's views on this. But the way in which U.S. legislation could potentially have a ripple effect in other parts of the world. We've seen this in other areas, for example, with legislation in the United States on anti-trafficking. And I think it's important to, you know, for us to think about the effects that legislation here could have overseas.
NNAMDIAlison Friedman, is this a global problem and does the U.S. lead the way in anti-SLAPP legislation?
FRIEDMANYes. It's a global problem. I think whether or not the U.S. will lead the way is an outstanding question. But it is absolutely clear that when the U.S. has led on human rights we've -- we have had a disproportionate impact in setting global norms. And then I think that I would urge Congress to pass strong anti-SLAPP legislation. And I think the carry over effect to the caller's point of, you know, addressing establishing norms around the closing of civic space internationally would be very welcome and important right now.
NNAMDIWell, let's bring it back to Virginia for a second, because the head or a spokesperson for the Virginia Trial Lawyers Association looked at Texas and said that, you know, Texas is often seen and praised for its anti-SLAPP protections. But he says since it was passed in Texas it has clogged the court systems. He's rational if you're a defense lawyer the first thing you are going to try to do is make any claim a SLAPP suit and get a motion to dismiss.
MEADOWSYou know, Texas is interesting. They did pass an anti-SLAPP law. It was fairly broad and protected defamation defendants and only recently there was a legislative bill, I think that was passed to contract that and give more rights back to the defamation plaintiff. So there was a thought that it went too far and protected the defendant. But that's actually not unique in some other jurisdictions that have anti-SLAPP laws they go back and forth.
NNAMDIJoe Meadows is the Litigation Partner at Bean, Kinney & Korman in Arlington. Thank you so much for joining us.
MEADOWSThank you for having me, Kojo.
NNAMDIAlison Friedman is the Executive Director of International Corporate Accountability Roundtable and the Secretariat of The Protect The Protest Task Force. Thank you so much for joining us.
FRIEDMANThank you for having me.
NNAMDIWe're going to take a short break. When we come back the new national ambassador for young people's literature, Author Jason Reynolds joins us to discuss "Stamped" his latest work. I'm Kojo Nnamdi.
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