Free speech threatened if legislators override veto

May 23, 2023   •  By David Keating   •    •  

This piece originally appeared in the The Oklahoman on May 23, 2023.


Oklahomans should be proud that their state has some of the strongest safeguards against frivolous defamation lawsuits in the nation — safeguards that help protect our First Amendment rights.

Sadly, that may soon change.

A bill that could soon become law, House Bill 1236, would undermine the Oklahoma Citizens Protection Act (OCPA). The OCPA created one of the most vigorous anti-SLAPP laws in the country. “SLAPP” stands for “strategic lawsuit against public participation.”

As the name suggests, these lawsuits’ purpose is to silence speakers for exercising political speech rights, usually by using a frivolous claim of defamation. If left unchecked, SLAPP lawsuits allow powerful plaintiffs to weaponize costly litigation to punish people for speaking.

Thankfully, anti-SLAPP laws like the OCPA prevent this abuse of the legal system by providing defenses to SLAPP lawsuits. Without such protections, the costs and inconvenience created by SLAPP lawsuits can be catastrophic.  Even worse, the mere threat of SLAPP lawsuits can “chill” speech, which means discouraging individuals from speaking in the first place.

HB 1236 seeks to weaken the powerful anti-SLAPP protection that Oklahomans currently enjoy. The bill damages free speech by making an award of attorney fees optional, rather than mandatory. Under the OCPA, a winning speaker frivolously sued for defamation is currently entitled to costs and attorney fees. HB 1236 makes that award optional.

In plain terms, this means that a court could rule that an unscrupulous plaintiff tried to silence a speaker with a frivolous SLAPP lawsuit, but that same court might nonetheless not require the plaintiff to pay the speaker’s attorney fees.

This change would be a devastating blow to free speech. It would especially harm speakers of modest means.

Today, many Oklahoma attorneys are often willing to take on a SLAPP client — even a middle- or low-income client — because they know they can recover fees. HB 1236 would not only make it harder for innocent speakers to find representation, but it also would make it more likely that a SLAPP lawsuit would place a tremendous financial burden on a winning speaker.

It’s easy to imagine how this might play out in practice. An ordinary Oklahoman could merely post a critical-but-truthful online comment below an article regarding a local business. That company could then sue the commenter for “defamation” to shut him up.

Today, that speaker would be on a relatively level legal playing field with the wealthy plaintiff. The commenter would know that, although inconvenient, the lawsuit would ultimately not ruin him financially if he wins.

If HB 1236 becomes law, that ordinary Oklahoman would suddenly find himself at a serious disadvantage: Even if he wins and shows that the defamation lawsuit was frivolous, he would be responsible for the costs associated with defending himself. And the next person who considers speaking out on a public issue may decide it’s not worth it — which defeats the purpose of the OCPA.

Media and independent news outlets also would suffer. In an era when such organizations are already struggling, potentially subjecting them to costly lawsuits — even if they win such lawsuits — would negatively impact their ability to report.

Gov. Kevin Stitt vetoed HB 1236 Monday morning, but the bill is still a threat. The Legislature can override the veto this week or in early June. I strongly urge lawmakers to respect the veto.

They must ensure that Oklahoma continues to be a bastion of strong free-speech protections, and that ordinary Oklahomans can retain the freedom to exercise their First Amendment rights without fear of being silenced.

David Keating

Share via
Copy link
Powered by Social Snap