How anti-SLAPP laws protect free speech

When consumers review products or services online, they shouldn’t fear a virtual slap on the hand while they type. But that’s exactly what’s happening as a result of a handful of businesses who hide behind SLAPP (Strategic Lawsuits Against Public Participation) laws to silence public opinion when they don’t agree with it. Congress needs to act now to ensure that Americans are free to speak their minds. 

These businesses are suing consumers who voice their honest opinions about their experiences. If the review isn’t glowing, customers may find themselves in court. That threat has a chilling effect not only on free discourse, but also on an open Internet and the 21st century information economy. 

{mosads}Take the case of Terry Ellen Carter and Tacy Newell-Foutz, bloggers in Christiansburg, Virginia. A developer sued them for libel after they complained on their blog about mounds of dirt left on one of his properties. The state’s highest court ultimately ruled in favor of the bloggers, but not before they each racked up thousands of dollars in legal fees. 

In Bellevue, Washington, Wendy Wester was sued by her orthopedic surgeon after she posted an unfavorable Yelp review following a misdiagnosed knee injury. She also followed up with the state medical board. The doctor – who also happens have a law degree – turned around and sued Wester for defamation. 

Jennifer Batoon was sued by a San Francisco dentist who sought to extract more than just teeth after a bad online review. The dentist sued Batoon for defamation and invasion of privacy after the patient shared a negative experience in the dental chair. Under California’s tough anti-SLAPP law, the case was thrown out and the dentist was ordered to pay Batoon’s $43,000 legal fees. Fortunately, the California law protected Batoon’s online freedom of speech. 

Sometimes, online reviews have the power to save lives, providing information about places or attractions that users believe may pose safety concerns. Just last year while on vacation in western Canada, as my family and I cruised the Pacific on a whale-watching boat, my wife noticed some of the onboard life-saving equipment was past its expiration date. After our voyage, she made a point of sharing that safety information in her online review of the boat company via the TripAdvisor travel review site. We thought nothing of it until this October, when that very same whale-watching boat – the Leviathan II – sank in October, killing several people. Upon hearing the news, we shared my wife’s online review with someone at Transport Canada who immediately responded with an email of their appreciation. 

We need national legislation that protects online speech and holds businesses accountable for bad service. The SPEAK FREE Act of 2015 (HB 2304) would do just that, leveling the legal playing field by ending meritless anti-speech lawsuits quickly and by making overreaching plaintiffs pay the legal fees and costs when they lose. The “loser pays” provision would be a crucial counterweight that would have a deterrent effect on frivolous or weak lawsuits seeking to silence voices that need to be heard. 

Protecting our right to free speech drives economic opportunity by generating new forums for expression, such as blogs and YouTube, and for stimulating competition and honest buyer feedback on consumer goods and services. A recent Consumer Technology Association market research study found that 30 percent of consumers use online product reviews when researching the prospective purchase of consumer electronics products and accessories. 

“If you post an honest review on sites like Yelp or Trip Advisor, or if you stand up and voice your opinion about any issue of concern for you or your community, you shouldn’t have to fear being silenced by someone with money to burn who is abusing our legal system,”says Rep. Blake Farenthold (R-Texas), chief sponsor of this bipartisan legislation. 

In 2011, Texas became the first state to enact anti-SLAPP legislation, the Texas Citizens Participation Act (TCPA). TCPA makes it much easier to dismiss bogus SLAPP suits and includes a loser pays provision. The federal SPEAK FREE Act would take those protections and make them the standard safeguards for free speech nationwide. The legislation was carefully drafted to respect and maintain the difficult balance of protecting free-speech rights while avoiding overly punitive measures, so as not to deter the filing of legitimate lawsuits. 

Consumers have a right to express their opinions without fear of punitive action. The SPEAK FREE Act takes important steps to ensure the Internet’s status as a critical economic engine remains intact.

Shapiro is president and CEO of the Consumer Technology Association (CTA)^TM, the U.S. trade association representing more than 2,000 consumer electronics companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World’s Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro