It's safe to say that there's not a lot of love for Trump on Capitol Hill. But what if I told you that those lawmakers can do something, right now, to give an outlet to their Trump antipathy and make the world a better place to boot? Because I can think of one thing they can do: pass a federal law protecting people from strategic lawsuits against public participation, more colloquially known as SLAPP suits.
What is a SLAPP suit? Basically, it's a lawsuit designed to chill free expression, in which a deep-pocketed litigant sues their critics knowing that even if they don't have a good case on the merits, the mere process of having to participate in the court battle could financially exhaust the defendant. Such lawsuits favor large corporations and wealthy plaintiffs, even when their cases are entirely frivolous. It's a very good way to deprive anyone without plutocratic financial reach of their free speech rights without actually having to win an argument.
And Donald Trump? He loves him some SLAPP suits.
Over at The Washington Post, Paul Farhi has a piece that details Trump's history of using the courts to quash dissent. The piece mostly focuses on Trump's recent vow to "open up" the current libel laws (somehow?) so that they protect him from facing public criticism (because he's thin-skinned), and details at great length the libel lawsuit Trump filed against former New York Times editor and Huffington Post executive editor Timothy O'Brien, who famously wrote a book about Trump in which he cast doubt over the reality television star's net worth.
Deep down in the piece, Farhi offers up this revelation:
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
In the first place, let me disclose that I have had lengthy conversations with O'Brien about his Trump book and the ensuing libel case he faced. In discussing both, I wouldn't describe him as "miserable." His emotional state, when talking about that case, was more like "giddy." Imagine a puppy dog in a ball pit, and that's how O'Brien seems, when he recalls these events.
But more to the point, what Trump is describing in this instance is a SLAPP suit. They make him "happy." He'll probably go right on pursuing them. And regardless of what his net worth is (Trump sought, unsuccessfully, $5 billion in damages in the O'Brien case, which I guess would have settled the issue), Trump can intimidate critics in this fashion for pennies on the dollar.
Back in 2011, another wealthy tyrant possessed of well-known physical diminution, Washington, D.C.-based NFL owner Dan Snyder, sued the Washington City Paper for having published "The Cranky Redskins Fan's Guide to Dan Snyder," a piece which exhaustively detailed Snyder's many, many shortcomings. This case had the potential to test the City Paper's financial means.
Fortunately, Snyder's P.R. flack went to an "Ethics in Sports Media" panel at Philip Merrill College and announced to all the students in the room that the case was essentially designed as a strategic lawsuit against public participation. The District of Columbia, which was the venue for this trial, happens to have some of the stronger anti-SLAPP protections in the country, so it's no surprise that the City Paper cited the laws specifically in their legal filings. (Snyder eventually filed to dismiss his own lawsuit.)
Courts and lawmakers have, in recent years, taken a very dim view of SLAPP suits. At the moment, 28 states have enacted anti-SLAPP statutes of varying efficacy, and certain courts are more likely to toss a SLAPP suit than others. But without federal protection, vexatious litigants like Trump can still go forum-shopping for a venue that might look on their nonsense cases favorably.
Here's some good news, though! Congress actually has the opportunity to put the kibosh on SLAPP suits. As the editors of the Los Angeles Times noted in their August editorial calling for a federal anti-SLAPP law that was as strong as the one in California (which is widely considered to be the gold standard), a solution may be right at hand.
Efforts to create a federal anti-SLAPP law started at least six years ago, but this year marks the first time that a sizable and bipartisan group is backing such a bill. One impetus is the growing number of SLAPPs aimed at Web-based businesses that provide a forum for the public to discuss, rate and criticize the world around them. The proposal -- HR 2304 by Rep. Blake Farenthold (R-Texas) -- has at least two dozen cosponsors. Borrowing heavily from California's law and a similar statute in Texas, the bill would allow people sued in federal court or in states with little protection against SLAPPs to have a federal judge dismiss frivolous claims based on speech "made in connection with an official proceeding or about a matter of public concern."
That bill, HR 2304 -- or the "SPEAK FREE Act of 2015" -- was referred to the House Subcommittee on the Constitution and Civil Justice in June. This might be a great time to dust that thing off and pass it in bipartisan fashion. It's good for free expression, it's a fitting bill to enact at this populist moment, and best of all, it would deprive Trump of something that makes him happy.
Really, why wouldn't Congress pass this? Probably because the vast majority of your Congresscritters are on the take from powerful corporate interests who want to reserve for themselves the right to crush and destroy the rest of us at will, that's why.
Author: Jason Linkins