WASHINGTON – Most states do a poor job of protecting their citizens from frivolous lawsuits intended to stifle free speech, according to a new study released today by the Institute for Free Speech. The 50-state “report card” evaluates the strength of legal procedures to protect free speech in court for each state and the District of Columbia and assigns them letter grades – while also making recommendations for policymakers on how they can improve their laws.
“Our legal system is broken in too many states and allows those with deep pockets to threaten critics with financial ruin if they don’t shut up,” said Institute for Free Speech President David Keating. “A state without an anti-SLAPP law is a state hostile to free speech. A strong anti-SLAPP law is one of the best and easiest protections for free speech that states can provide. Every state should have one, and make sure it covers as much speech as possible.”
Thirty-one states were given grades of Ds or Fs, an indication of how widespread the risk from frivolous lawsuits is to American citizens’ free speech. While the median grade was a D, 16 states plus Washington, D.C. earned “A” or “B” grades in the report. In all, 32 jurisdictions (31 states + D.C.) currently provide at least some protection against lawsuits that threaten free speech.
The potential victims of non-existent or weak anti-SLAPP laws are numerous and transcend political and ideological divides, which is why strong anti-SLAPP laws enjoy often unanimous bipartisan support when adopted. In recent years, beneficiaries of robust anti-SLAPP laws have included journalists, environmental activists, citizens speaking at government meetings, conservative Christians, Hollywood filmmakers, scientists, people leaving Yelp reviews, people who post on social media, podcasters, anti-abortion groups, labor unions, public officials, community advocates and more.
The First Amendment enshrines strong protections for free speech and free expression. However, all too often, legal action or the mere threat of it can have a chilling effect on speech. Speakers who criticize a big corporation or wealthy individual risk being dragged into court with a frivolous defamation lawsuit, also known as a strategic lawsuit against public participation, or SLAPP. Even when the First Amendment is on your side, the financial costs and risks of such a legal battle are enough to force many Americans into self-censorship.
Anti-SLAPP laws are designed to limit the risk to speakers. Strong anti-SLAPP laws create procedures that make it easier for speakers to get frivolous cases dismissed quickly. They force plaintiffs to show that their case has merit before forcing speakers to bear significant legal costs. Strong laws also give speakers a right to immediately appeal an adverse ruling and force losing plaintiffs to pay a speaker’s legal fees for fighting off the SLAPP.
The study also makes recommendations for policymakers on how to improve free speech protections in their state. The authors hold up the Uniform Law Commission’s (ULC) model anti-SLAPP statute, the Uniform Public Expression Protection Act (UPEPA) produced in 2020, as the gold standard – while outlining specific changes to existing laws that would meet that standard. The ULC is a nonprofit and nonpartisan organization of state commissioners on uniform laws that recommends and drafts model state legislation.
“Most of the states that received D grades have a fundamental flaw in their statute: covering too little speech,” said Keating. “Nearly all of those states could earn ‘A’ or ‘B’ grades simply by modifying their laws to protect the same kinds of speech covered by the Uniform Law Commission’s Model Act.”
Despite the high number of states with lackluster grades, in recent years there has been an increasing trend of states enacting strong anti-SLAPP laws to fix the problem. In 2022 alone, bills in at least five states have strong prospects of passing.
Already five states are considering adopting the ULC’s model statute this year: Iowa and Kentucky, which would be new laws, and Missouri, Hawaii, and Indiana, to greatly improve existing laws. The Iowa and Kentucky bills have already passed the House in each state by unanimous votes. Hawaii’s Senate Judiciary Committee unanimously passed a bill based on the ULC model. Other states are expected to see new bills based on the ULC model act introduced later this year.
In late February, strong majorities in the Arizona and Maryland lower chambers passed bills proposing substantial improvements to their existing laws.
There are four excellent new state laws adopted in the last three years (out of 16 states with strong laws):
- Colorado and Tennessee in 2019 (new or effectively new)
- New York in 2020 (big improvements)
- Washington in 2021 (new)
Other relatively recent enactments:
- Kansas was in 2016 (another “A” grade)
- Oklahoma in 2014 (another “A”)
- Nevada substantially improved its law in 2013 (also an “A”)
Outside the United States, there is a significant effort underway in the European Union to enact an anti-SLAPP measure.
MORE ABOUT THE STUDY
“Anti-SLAPP Statutes: A Report Card,” authored by attorney Dan Greenberg and Institute for Free Speech President David Keating, evaluates the strength of anti-SLAPP protections across America. The report considers several key components of these laws and assigns each state an overall numerical rating and letter grade. The report also includes an appendix providing a jurisdiction-by-jurisdiction summary of the statute in each state and Washington D.C., including cites to both statutory text and some relevant case law.
Thirty-one states and the District of Columbia have functioning anti-SLAPP statutes that provide at least some useful procedural protections for some speakers in court. But the study finds 12 of those 32 laws have a severe flaw resulting in “D” grades. According to the report, 11 of these states “could improve their grades to ‘B-’ or better” by simply covering more speech. Weak anti-SLAPP laws either only protect speech about particular topics or speech in certain forums, such as before a government body. Strong laws protect any speech about a matter of public importance in any forum, whether in newspapers, social media, online reviews, or anywhere else.
Nineteen states do not have an anti-SLAPP law, leaving citizens at high risk of being sued into silence with a meritless case. The report recommends these states adopt the model anti-SLAPP act drafted by the Uniform Law Commission.