How States Can Assist Americans Who Have Been Slandered By Reckless Media In Obtaining Justice In Court

States should remove anti-SLAPP legislation to allow regular folks to sue Big Media and tech giants in court.

Following Kyle Rittenhouse's acquittal, some commenters suggested that he sue the various media people who had erroneously labeled him a white supremacist and killer for more than a year. After all, it seems only right that Rittenhouse, whose life was ruined by skewed media coverage, should be allowed to recoup some of his losses now that he's been found not guilty.

Our legal system, on the other hand, creates significant roadblocks in the way of libel litigants like Rittenhouse. The 1965 Supreme Court decision in New York Times v. Sullivan, for example, severely limits the capacity of "public personalities" to sue the media for libel and slander, even if those "public figures" are regular individuals forced into the limelight by sensationalistic media coverage, as Rittenhouse was.To win a lawsuit, Sullivan requires a "public person" to show that the media behaved with "actual malice." This bar is extremely difficult for libel plaintiffs to achieve, and many observers, including two Supreme Court justices, have argued for its repeal in recent years, citing the great ability of huge media outlets to poison public debate and damage lives in the digital era.

Another — maybe even more significant — stumbling block for libel victims has gotten little attention: "anti-SLAPP" legislation, which are in place in 33 states. "Strategic lawsuit against public participation," or "SLAPP," is an abbreviation for "strategic litigation against public participation." In theory, anti-SLAPP laws are intended to protect concerned people who speak out on public concerns and, as a result, are targeted by powerful entities seeking to suppress them through frivolous litigation.

There were several examples of similar litigation in the 1980s, mostly by developers seeking retaliation against environmental activists or homeowners who lived in "not-in-my-backyard" areas. Regardless of the initial goal of these laws, they now frequently serve the exact opposite purpose: they protect huge media and tech giants in their efforts to libel and suppress regular persons.

Too Broad a Definition of ‘Public Concern’

Anti-SLAPP legislation allow defendants to submit a "special move to dismiss" any lawsuit arising from the defendant's "statement on an issue of public concern" or "public forum" speech.

Many jurisdictions (such as California) define "public forum" so broadly that it includes any posting on a social media site. Similarly, Texas' anti-SLAPP legislation covers any litigation originating from the "publishing... of material for public communication." "Speech on an issue of public concern" is defined as "whatever the public could be interested in," which is an useless criteria.

Misuse of Law

Worse, under anti-SLAPP rules, a tech company's act of restricting a user's speech is seen as the tech company's speech, rather than the user's, on the assumption that censorship is itself a type of speech. Because anti-SLAPP statutes are frequently based on First Amendment rights, this is the case.

As a result, Big Tech platforms that claim to have First Amendment rights against forced speech employ anti-SLAPP legislation to sue users who have been restricted and hold them accountable in court.

Ironically, when consumers sue large internet companies for censorship or deplatforming, the corporations usually react with anti-SLAPP filings accusing the individual user of attempting to censor the company through their case. That may sound completely insane, yet it frequently works.

Further Obstacles for Libel Victims

To win an anti-SLAPP motion, a libel victim must show that he or she is likely to win his or her lawsuit before any discovery has taken place. However, keep in mind that Sullivan requires the libel victim to show that the media organization made the false statement with "actual malice." This is tantamount to willful denial of the truth, and therefore necessitates proof of the reporter's subjective state of mind.

When a libel victim files a case, he or she virtually never has such proof. Although such proof must be discovered, anti-SLAPP regulations oblige the libel victim to establish his or her case as soon as the complaint is filed. If the libel victim is unable to do so, the case will be dismissed, and the libel victim will be obliged to pay the defendant's legal expenses, which are usually always in the thousands of dollars.

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 almost always be unable to show that their case falls within an exception to Section 230 of the Communications Decency Act's broad grant of immunity to tech giants, and will thus face punitive damages under anti-SLAPP laws simply for filing a lawsuit. When an anti-SLAPP motion is filed, claims for commercial deceit, breach of contract, and other similar claims often fall by the wayside.

To summarize, despite their pro-speech intentions, anti-SLAPP laws are frequently exploited by media conglomerates and Big Tech firms to penalize those who dare to challenge libeling or censorship. These rules are not specifically focused to protect speech, but have been sloppily crafted to create insurmountable barriers in the way of regular persons attempting to oppose big companies.

Due to censorship, libel and deplatforming victims are frequently unemployed and unable to gather funds – remember how Rittenhouse was kicked off GoFundMe when he sought to seek money for his legal fees? The thought of having to pay the legal bills of the rich businesses who slandered them is frequently enough to deter a libel victim from filing a lawsuit in the first place.

It would be impossible to overturn Sullivan without a Supreme Court judgement or a constitutional change. Nothing, on the other hand, prevents states from abolishing their anti-SLAPP laws and allowing regular folks to sue Big Media and internet giants in court on an equal footing.

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