Protecting People from Lawsuits for Speaking Out

June 16, 2016
When my constituents are planning a vacation, looking for a new dentist, or hunting for a good restaurant, they know they can get information from consumer review websites. Online review platforms such as TripAdvisor and Yelp empower consumers with better information and encourage businesses to devote more attention to customer service. In the 21st century, the internet has become our town hall, our speaker’s corner, and our bulletin board all rolled into one.

But there’s something many people may not know, and that is if you leave an unflattering review or an unpopular comment online, you can be threatened with a lawsuit forcing you to remove your comment or face significant legal fees. These lawsuits, known as Strategic Lawsuits Against Public Participation (SLAPPs), typically have no merit but can be very intimidating to people and can force them to retract their criticism. In 2015, approximately 2,500 TripAdvisor users reported that they had removed a review after being threatened by the business they reviewed. There were likely thousands more who removed their reviews without reporting to TripAdvisor that they were threatened with a lawsuit.

Californians are protected from these frivolous lawsuits in state courts thanks to California’s landmark anti-SLAPP law which has been on the books since 1992. But in federal courts and the 22 states that do not have an anti-SLAPP law, the threat of costly litigation is powerfully chilling on free speech. Even when strong state laws are in place, creative lawyers can file suit in federal court or states where no such protection exists.

That’s why I’ve joined with Congressman Blake Farenthold (R-TX) to introduce legislation to create a federal anti-SLAPP law that will protect all Americans from lawsuits intended to silence their free speech. Our bill, the SPEAK FREE Act, creates a new process in federal court that will protect Americans from harmful SLAPP suits by allowing these cases to be dismissed early in the process.

SLAPP suits are a serious threat to free speech and communicating on the internet, but this issue goes far beyond the ability of consumers to express an opinion online. SLAPP suits can be used to limit the ability of the free press to report the news; to limit the ability of citizens to speak up at public meetings; and to limit the ability of individuals to stand up and speak out for what they think is right.

Several years ago my constituent Robin Yeamans found herself in the middle of such a situation. As a family lawyer, Robin witnessed an alarming trend in the Santa Clara County Family Court of local children being irresponsibly placed in the wrong hands. When Robin decided to speak out in order to protect children from unjust custody decisions, she was sued for defamation.

Without an anti-SLAPP law in place, Robin would have been forced to either retract her statements or face years of costly litigation to defend her right to express her opinion. But thanks to California’s strong anti-SLAPP law, the lawsuit was dismissed at an early stage and Robin’s attorney’s fees were paid. She was also successful in forcing important reforms at the Family Court to protect vulnerable children. Robin says that California’s anti-SLAPP law “saved my life,” and without it she could have been intimidated into silence.

Robin’s case of being sued for speaking out is not a unique one across the country, but the good news is that the House Judiciary Committee has scheduled a hearing on June 22 on the SPEAK FREE Act. This bill extends the strong anti-SLAPP protections provided in California and Texas into federal courts and nationwide.

The ability of individuals to speak freely in public forums is a hallmark of our democratic society and SLAPP suits are a serious threat to our First Amendment rights and the open internet. Next week, in the face of increasing threats, Congress will move one step closer to protecting the free speech rights of all Americans.

Congresswoman Anna G. Eshoo, a Democrat, represents California’s 18th Congressional District and is Ranking Member of the House Communications and Technology Subcommittee. This Op-Ed ran in the June 16, 2016 edition of the Mercury News.