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How States Can Help Americans Slandered By Reckless Media Get Justice In Court

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After Kyle Rittenhouse’s acquittal, several commentators called for Rittenhouse to sue the many media figures who, for more than a year, falsely branded him a white supremacist and murderer. After all, it would seem fair that Rittenhouse, whose life was ravaged by biased media coverage, would be able to reap some measure of restitution now that he’s been acquitted.

Our justice system, however, throws up several obstacles in the path of libel plaintiffs like Rittenhouse. A major one is the Supreme Court’s 1965 New York Times v. Sullivan decision, which greatly restricts the ability of “public figures” to sue the media for libel and slander — even if, like Rittenhouse, those “public figures” are just ordinary people thrust into the limelight by sensationalistic media coverage.

Sullivan requires that a “public figure” prove the media acted with “actual malice” in order to win a suit. This standard is very difficult for libel plaintiffs to meet, and in recent years many commentators, including two Supreme Court justices, have called for scrapping it in light of large media outlets’ enormous power to poison public discourse and ruin lives in the digital age.

Another — perhaps even more formidable — obstacle for libel victims has not received nearly as much commentary: “anti-SLAPP” laws, which are on the books in 33 states. “SLAPP” is an acronym for “strategic lawsuit against public participation.” In theory, anti-SLAPP laws are designed to protect concerned citizens who speak out on public issues and, in response, draw frivolous lawsuits from powerful entities that are designed to silence such citizens.

In the 1980s there were many examples of such suits, largely from developers trying to retaliate against environmental activists or not-in-my-backyard homeowners. Whatever the original intent of these laws, however, today “anti-SLAPP” laws most often serve the exact opposite purpose: they protect large media and tech conglomerates in their efforts to defame and silence ordinary citizens.

Too Broad a Definition of ‘Public Concern’

Anti-SLAPP laws allow defendants to file what is known as a “special motion to dismiss” any suit that arises from the defendant’s “speech on a matter of public concern” or in a “public forum.”

Many states (such as California) define “public forum” so broadly that any posting on a social media platform will qualify. Similarly, Texas’s anti-SLAPP law applies to any lawsuit arising from the “posting . . . of information for communication to the public.” “Speech on a matter of public concern” is defined as anything the public might possibly be interested in — a standard so broad as to be meaningless.

Misuse of Law

Even worse, under anti-SLAPP laws, a tech company’s act of censoring the speech of a user counts not as the user’s speech, but the tech company’s — on the theory that censoring someone is itself a form of speech. That is because anti-SLAPP laws are often patterned on First Amendment rights.

Thus, Big Tech platforms claiming to have First Amendment rights against compelled speech wield anti-SLAPP laws against users that they have censored when those users seek to sue hold them accountable in court.

Ironically, this means that when users sue massive tech companies for censoring or deplatforming, the tech giants typically respond with anti-SLAPP motions that accuse the individual user of seeking to censor the tech company by their lawsuit. That may sound totally bonkers, but it often works.

Further Obstacles for Libel Victims

To prevail against an anti-SLAPP motion, a libel victim must prove — before any discovery has been had — that the victim is likely to win his or her lawsuit. But recall that Sullivan requires the libel victim to prove that the media entity acted with “actual malice” in making the false statement. That equates to reckless disregard of the truth, and requires evidence of the reporter’s subjective state of mind.

A libel victim will almost never have such evidence when he or she filed the lawsuit. Such evidence requires discovery, but anti-SLAPP laws require the libel victim to prove his or her case immediately upon filing the lawsuit. If the libel victim cannot do so, the suit will be tossed, and the libel victim will be forced to pay the defendant’s legal fees — almost always in the five or six figures — as a punishment.

A libel plaintiff whose case relies upon overruling Sullivan or otherwise changing the law would run the risk not just of immediate dismissal, but of having to pay a massive penalty. Similarly, a victim of Big Tech deplatforming or censorship will typically be unable to prove that their case falls within an exception to the sweeping grant of immunity provided to tech giants by Section 230 of the Communications Decency Act, and thus also face punitive damages under anti-SLAPP laws just for daring to bring suit. Without access to discovery, claims for commercial deception, breach of contract, and the like will typically fall by the wayside when an anti-SLAPP motion is filed.

In sum, despite their pro-speech intent, anti-SLAPP laws are typically used by media conglomerates and Big Tech companies to punish individuals who dare to fight back against being libeled or censored. These laws are not narrowly targeted to protect speech, but sloppily drafted so as to place insurmountable burdens on ordinary citizens seeking to fight back against powerful entities.

Libel and deplatforming victims are frequently unemployable and incapable of raising money due to censorship — recall that Rittenhouse was thrown off GoFundMe when he tried to raise money for his legal fees. The threat that a libel victim will have to pay the legal fees of the wealthy corporations that have slandered them is often enough to prevent the victim from bringing suit in the first place.

Overturning Sullivan would be quite difficult, requiring a Supreme Court ruling or constitutional amendment. By contrast, there is nothing stopping states from repealing their anti-SLAPP laws and allowing ordinary citizens a level playing field on which to fight back against Big Media and tech companies in court.