Idaho is one of the last states without an anti-SLAPP law. It’s time to change that

December 5, 2023   •  By David Keating   •    •  

This piece originally appeared in the Idaho Statesman  on December 5, 2023.

 

Years-long litigation between political opponents has led to an unlikely outcome: individuals on both sides of the lawsuit agreeing that Idaho desperately needs an anti-SLAPP statute. SLAPP stands for “strategic lawsuit against public participation.” These suits usually take the form of meritless defamation lawsuits and can be weaponized by plaintiffs to silence speech they don’t like, preventing speakers from exercising their First Amendment rights. Even if a defendant ultimately prevails, the cost and stress of defending such a suit can severely compromise speakers’ ability to comment on matters of public concern. Worse, SLAPPs can cause other speakers to think twice about commenting at all, thus “chilling” speech by incentivizing silence.

Here in Idaho, recently concluded litigation pitted former Rep. Chad Christensen, R-Iona, against political activist and consultant Greg Graf, with Graf also countersuing Christensen ally Dustin Hurst, former vice president of the Idaho Freedom Foundation, who exchanged barbs with Graf on X, formerly known as Twitter. The competing lawsuits ultimately arrived at a mutually unsatisfying result — a result that led to surprising insight into the flaws of the process itself.

Despite their legal battle, Graf and Hurst found unexpected common ground regarding Idaho’s need for an anti-SLAPP statute. “If we had anti-SLAPP logic legislation, I would utilize that, probably, instead of filing a counterclaim the way I did,” Graf told KTVB. “If we can extract lessons from this and improve public policy so bullies who want to use the legal system to silence their foes can’t do this. That’s a huge win for all of us,” observed Hurst.

Unfortunately, as the Institute for Free Speech’s new 2023 Anti-SLAPP Report Card highlights, Idaho is one of a dwindling number of states without vital protections against meritless lawsuits targeting free speech. In fact, Idaho is one of just 17 states that have no anti-SLAPP protection at all, earning the state an embarrassing “F” grade for its score of 0 out of 100 possible points in the report. The national trend tells a more hopeful story. For the first time, over half of Americans now live in a state with strong anti-SLAPP protections. Helping to foster this positive trend, the nonpartisan Uniform Law Commission in 2020 published a model statute: the Uniform Public Expression Protection Act (UPEPA). Six states have already used UPEPA to enact new or improved laws since the 2022 edition of the Anti-SLAPP Report Card. Strong anti-SLAPP laws modeled after UPEPA contain critical provisions that deter SLAPPs and minimize litigation costs for defendants. These provisions require plaintiffs to show they have a legitimate case early in the proceedings and provide defendants with a right to an immediate appeal if the court denies the anti-SLAPP motion. These laws also permit a winning defendant to recover an award of costs and attorney fees and instruct judges to interpret the law’s speech protections broadly.

Even the anti-SLAPP epiphany reached by both sides in the Christensen-Graf legal battle is not as remarkable as it may first appear. Laws protecting citizens from SLAPPs have united politicians of all stripes, often passing with overwhelming—often unanimous—bipartisan support. That broad appeal also explains why an ideologically diverse coalition of 28 organizations, of which the Institute for Free Speech was an organizing member, published an open letter in support of UPEPA last year. Signers included organizations as varied as National Right to Life, the ACLU, Competitive Enterprise Institute, League of Conservation Voters, and the International Association of Better Business Bureaus. This broad coalition spanning the ideological spectrum reflects the immense value for free speech that strong anti-SLAPP laws have. Now, Senator Brian Lenney, R-Nampa, has said he intends to draft anti-SLAPP legislation and introduce it in the next legislative session. Let’s hope the legislature adopts a bill tracking UPEPA and elevates Idaho from the depths of the “F” states into the growing group of states that protect the speech rights of their citizens from time-consuming, speech-suppressive lawsuits.

David Keating

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