National Newspaper Association and media groups ask US Supreme Court to protect anti-SLAPP laws in states

Tonda Rush

Jul 9, 2020

The U.S. Supreme Court should review a decision by the United States Court of Appeals for the Fifth Circuit (New Orleans) that allows litigants to avoid a state’s anti-SLAPP laws by filing a case in federal court, National Newspaper Association said this week.

Anti-SLAPP laws — short for “strategic lawsuits against public participation” — are intended to allow courts to short-circuit suits brought for the express purpose of limiting publication, communication or exercise of First Amendment rights of expression. By using Anti-SLAPP laws, courts can save litigants hundreds of dollars in lawsuit costs by determining early in the case whether the plaintiff brought a case primarily to discourage communication. More than 30 states now have such laws but the federal government does not.

The case brought to the Supreme Court grew out of a dispute in Texas between an activist who was accused of racist comments and a blogger who wrote about him. The activist, Thomas Retzlaff, sued Jason Van Dyke for what he said were defamatory comments about Retzlaff’s past. Retzlaff filed the case in federal court where no anti-SLAPP statute could play into the arguments and possibly cause the lawsuit to be dismissed. NNA joined 14 other media organizations in an amicus brief filed by Emory University Law School’s Supreme Court Advocacy program to urge the court to resolve the anti-SLAPP question, which is being handled in different ways across the federal circuits.

“NNA is always concerned when the use of litigation puts a chill on free speech,” NNA President Matt Adelman, publisher of the Douglas (Wyoming) Budget, said. “We have no position on the underlying dispute between the two gentlemen, but we do support anti-SLAPP statutes. They are a critical tool to help community newspapers avoid being drained of resources in lengthy litigation when the primary motivation is to get us to stop writing about something. These statutes are a part of the framework of First Amendment freedoms that state legislatures have wisely crafted. It is unfortunate that Congress has not passed a federal anti-SLAPP law, but people ought not be able to sidestep the will of the people in a state by going to federal court just to take advantage of Congress’s inaction. That is why we joined the brief. The Emory program has done a terrific job of laying out in its brief some of the many ways that newspapers have been hurt by litigation. We appreciate its strong advocacy.”