There are two big problems with this theory.
First, anti-SLAPP isn't likely to deter frivolous SLAPPs filed by wealthy companies and individuals. Wealthy entities have more than enough money to litigate anti-SLAPP and to absorb the potential awarding of attorney's fees to defendants. In fact, proponents have never come up with any statistical evidence that anti-SLAPP laws deter frivolous lawsuits.
Second, the intent of anti-SLAPP laws -- to protect the little guy from the big guys -- is constitutionally prohibited. You can't grant rights to some defendants but not others; there are plaintiffs and defendants, period. So there's nothing to prevent a rich mega-corporation from using anti-SLAPP against Joe Schmoe.
Which is how the LA Times, the fourth largest newspaper in the U.S. and part of a $512 million media conglomerate, was allowed to file an anti-SLAPP motion against a $300/week cartoonist. In other words, the Times censored my cartoons and tried to ruin my journalistic career for their owners, the police. Then they accused me of violating their First Amendment rights!
Starting with their anti-SLAPP motion, Times' lawyers have unleashed a barrage of tactics to delay my suit and harass me. And it's worked -- for nearly a year, I haven't been able to question Times editors or LAPD officials under oath or subpoena documents that would help me build my case -- or my defense to the anti-SLAPP motion. I'll get my case before a jury in 2018 or 2019 -- if I'm lucky.
Or I'll be broke.
Three days of anti-SLAPP hearings in Rall v. Los Angeles Times begins February 28th in LA Superior Court. My attorneys spent many hours preparing our opposition to that motion. Legal fees aren't cheap, so the expense of defending against an anti-SLAPP filing before the case even begins is enough to deter some plaintiffs from filing valid lawsuits.
If the judge rules for the Times, I'll be ordered to pay the Times their legal fees. The Times told the court their bills would be at least $300,000. If she rules for me, the Times can and probably will appeal to the Court of Appeals. That means more work for me and my lawyers and months, maybe another year, of delay -- and justice delayed is justice denied. If the appellate court agrees with the Times, my case gets thrown out and I'll have to pay the Times' bills -- which by then will be significantly higher.
I know I'm right. And I think the law is on my side. But by filing a lawsuit in an anti-SLAPP state, I'm risking bankruptcy. How many would-be plaintiffs get scared away from pursuing their legitimate claims? How many defendants get away with illegal behavior by abusing anti-SLAPP laws?
Anti-SLAPP opens the door to unfair defense tactics. LA Times lawyers invoked an obscure California statute to require me, as a non-California resident, to post a cash bond to guarantee the Times' legal bills if they win on anti-SLAPP. They asked for $300,000; the judge knocked it down to $75,000. Just to keep my case going -- before it begins, really -- 75 grand was the cost of entry.
Thanks to concerned readers who gave to my GoFundMe campaign, I raised the $75,000. After I turned over the money to a bond company who filed it with the court (more fees there), the Times tried to get the case thrown out on the ground that the form hadn't been filled out perfectly.
Still think it's too easy to sue?
There's hope for change. In 2015 Washington State became the first state to find its anti-SLAPP statute unconstitutional because it denies plaintiffs their fundamental right to a trial by jury. Anti-SLAPP, the Washington Supreme Court ruled, "seeks to protect one group of citizen's constitutional rights of expression and petition -- by cutting off another group's constitutional rights of petition and jury trial." Minnesota and D.C. may do the same.
Congress should pass a federal law about this -- one that bans anti-SLAPP laws.
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