The rich shouldn’t be able to use frivolous lawsuits to silence speech

In 2022, Samson Cournane did what countless generations of Americans before him have done, and what the Constitution protects his right to do: he petitioned his congressman.

Samson, who was then 14 years old, created a Change.org petition addressed to Maine Rep. Jared Golden questioning the patient safety record at Eastern Maine Medical Center, a Bangor hospital operated by healthcare conglomerate Northern Light Health. Samson wrote the petition in response to the hospital firing his mother, a pediatric ICU doctor, after she raised concerns about the hospital’s pediatric safety protocols. “Healthcare workers shouldn’t be working in a culture of fear and silence when it comes to raising questions about patient safety,” he wrote.

But the conglomerate’s reaction was shocking. It threatened to sue Samson’s mother for “defamation,” on the baseless theory that Samson couldn’t have possibly written the petition. Not only was the hospital wrong as a matter of law — Samson’s petition included accurate information and fact-based opinions — it was wrong on the facts. As a 15-year-old computer science major at the University of Maine, Samson is more than capable of writing a petition.

In August, the Foundation for Individual Rights and Expression (FIRE) demanded the conglomerate retract its threat to sue. As FIRE explained, “When Mainers, whether 15 or 50 years old, ask for their government’s assistance to address perceived wrongs, their statements are protected from baseless lawsuits designed to silence them.”

Samson’s case is a textbook example of a Strategic Lawsuit Against Public Participation, or “SLAPP.” As the name implies, a SLAPP is a meritless lawsuit brought to dissuade its target — among others — from speaking out on public issues. The primary purpose of a SLAPP isn’t to win; the suits often have little chance of succeeding at trial. Rather, they are intended to punish speakers and silence dissent beneath an avalanche of court filings, discovery requests and legal fees.

In our polarized times, these troublesome suits are everywhere.

In one prominent example, former Rep. Devin Nunes — a notorious filer of SLAPPs — sued the person behind the satirical Twitter account @DevinCow in 2019 for $250 million. The account, which at the time had only a few thousand followers, purports to be run by one of Nunes’s dairy cows and is often critical of the former congressman, posting such knee-slappers as “Devin’s boots are full of manure. He’s udder-ly worthless and it’s pasture time to mooove him to prison.”

While this suit was ultimately dismissed, the litigation took more than two years and sent an unmistakable message to Nunes’ critics: Be quiet, or else.

Elon Musk’s X filed a lawsuit against left-wing activist group Media Matters for America in November. The social media site claims that Media Matters’s report about ads from bluechip advertisers appearing alongside offensive content left a “false impression” and was part of a “smear campaign” against the platform.

Musk and X of course have every right to contest criticism they believe is biased or off base in the court of public opinion. But opinionated criticism is protected by the First Amendment.

As Samson’s and all these cases illustrate, SLAPP suits aren’t just an abstract threat affecting the rich and famous. They also have very real impacts on the lives of everyday Americans.

FIRE also represents NeuroClastic, a small, autistic-led nonprofit that was threatened with a defamation suit for criticizing a Massachusetts facility that uses electroshock devices to treat autism and other disorders. Instead of refuting NeuroClastic’s criticism or defending its own practices, the facility resorted to baseless legal threats.

And in September, FIRE asked the Idaho Supreme Court to dismiss a lawsuit against Gary Gadwa, a retired public servant with nearly 40 years of experience in search-and-rescue operations. Gadwa spoke out against a wealthy landowner’s permit application to designate part of his ranch in the Sawtooth National Recreation Area as an airstrip, arguing that the airstrip was unnecessary for search-and-rescue operations and would mar the area’s scenic value. Despite Gadwa’s and many others’ objections, the permit was granted. But rather than take his permit and go home, the landowner sued Gadwa for speaking out.

FIRE took these cases to illustrate the threat SLAPPs pose to public discourse. Regular Americans who speak out on issues affecting their communities are forced to self-censor when those who disagree with their views choose litigation over conversation.

Fortunately, over 30 states and D.C. have enacted some form of anti-SLAPP legislation to help defendants get these suits dismissed quickly. While their provisions vary, most create a procedure for pausing litigation while the court determines whether the suit is based on the exercise of constitutional rights and, if so, whether the claims have merit. If the court decides the suit is a SLAPP, the statutes allow for early dismissal and, crucially, enable defendants to collect attorney’s fees from the plaintiff. These provisions ensure nobody can be sued into bankruptcy just for speaking their mind.

But while these statutes provide some measure of protection in state court, their utility at the federal level is mixed. Many federal courts have declined to apply state anti-SLAPP statutes, leaving defendants without a critical tool for early dismissal of meritless lawsuits.

The solution is a strong federal anti-SLAPP statute. Such legislation would provide defendants with a means to fight back against would-be censors, whether they be New England corporations, wealthy Western ranch owners or Elon Musk himself.

Jay Diaz is a senior attorney at the Foundation for Individual Rights and Expression (FIRE). Jared Mikulski is a First Amendment attorney and former FIRE Litigation Fellow.