As a vocal minority increasingly airs their displeasure with the actual malice rule the U.S. Supreme Court established in New York Times v. Sullivan, media defense attorneys find themselves searching ...for way to pushback against the possible erosion of a key First Amendment protection for free speech. This article calls for a reconsideration of the "matter of public concern" standard that a plurality of the Court promulgated in Rosenbloom v. Metromedia. The article outlines the chief concerns brought by those who wish to reconsider the requirement that public officials and public figures prove reckless disregard for the truth to recover in defamation cases. Upon closer inspection, many of these concerns reflect a frustration with increasing criticism of public officials as well as procedural changes in addition to the actual malice standard that have made it more difficult for litigants to successfully sue for defamation. It argues the Rosenbloom standard strikes the proper balance between the protection for individual reputation and the ability to engage in meaningful public deliberation in a democratic society.
This Article addresses a troubling trend that has emerged in the human rights and environmental rights litigation space over the last decade: the weaponization of ethics-related allegations against ...plaintiffs’attorneys as an attempt to suppress litigation. While some states, though certainly not all, have passed legislation to address the harm caused by strategic lawsuits against public participation (SLAPPs), there is not a similar legislative effort to combat newer scrupulous litigation tactics. This Article situates the current weaponization of ethics complaints and sanctions against environmental attorneys within two larger historical phenomena: the longstanding phenomenon of weaponizing ethics and professional responsibility rules as an exclusionary tool within the legal profession and the development of increasingly scrupulous litigation tactics in environmental lawsuits.
At the conclusion of the SLAPP suit, the defendant could respond by filing a new lawsuit against the SLAPP filer for malicious prosecution, abuse of process, intentional infliction of emotional ...distress, or other state statutory or common law claims.9 Although these causes of actions provide an avenue for victims of SLAPP suits to recover damages, numerous obstacles make these avenues undesirable. After enduring a long and costly litigation battle, a defendant in a SLAPP suit is unlikely to be capable of commencing and funding new litigation.10 Additionally, successfully litigating these common law claims places the burden of proof on the plaintiff.11 Malicious prosecution requires the plaintiff to first have the initial claim resolved in its favor.12 Many defendants in a SLAPP suit, due to the high cost, will eventually settle the lawsuit rather than continue through the finality of the case. ...anti-SLAPP statutes generally apply to causes of action that arise from the defendant's exercise of their First Amendment rights, including the freedom of speech, freedom to petition, and freedom of association.17 Second, anti-SLAPP statutes often provide for a shifting burden of proof, requiring the defendant to show that the anti-SLAPP statute applies and then shifting the burden of proof to the plaintiff to establish a prima facie case for each element of the cause of action.18 Third, many anti-SLAPP statutes provide remedies and mechanisms for relief to undermine the original plaintiff's motivation for filing a SLAPP suit. "24 Missouri and New Mexico also limit the applicability of their antiSLAPP statutes to conduct or statements "undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state.
ERIE SLAPP BACK Harrison, Jack B
Washington law review,
10/2020, Volume:
95, Issue:
3
Journal Article
Peer reviewed
Dozens of states have enacted anti-Strategic Lawsuits Against Public Participation (SLAPP) laws to counter SLAPP suits, or lawsuits filed to silence a defendant who has spoken out against a ...plaintiff. The primary goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant from exercising their right to free speech by threatening excessively expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, discovery limitations, and fee shifting, all designed to allow a defendant to expeditiously dispose of the SLAPP suit before engaging in costly discovery.
In an effort to protect the exercise of free speech and petitioning activity against meritless defamation suits, numerous states have enacted laws to deter "SLAPP"-"strategic lawsuit against public ...participation"-suits. Such strike suits often involve speech on matters of public concern and would have no practical chance of prevailing under current First Amendment doctrine. However, the time and expenses associated with getting these claims dismissed are often enough to intimidate would-be speakers into silence.
The new (c)ensorship Tehranian, John
Iowa law review,
11/2015, Volume:
101, Issue:
1
Journal Article
Peer reviewed
Copyright law has become the weapon par excellence of the 21st-century censor. Fueled by a desire to prevent one's perceived foes from making certain types of speech, an individual has no better ...friend. Copyright violations are ubiquitous. Liability can be massive. Copyright suits are difficult to fend off. And, perhaps most saliently to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses. Whether it is a creationist group using the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists, abortion-rights activists using copyright law to enjoin speech by pro-life forces, or a political commentator vindicating his exclusive rights to recordings of his shows to suppress criticism of a hate-filled rant, examples of this disingenuous use of copyright law abound. After surveying the growing use of copyright law for the purposes of censorship, this Article examines just how this trend undermines both the vitality of our copyright regime and public discourse; how some courts have attempted to deal with this problem through the use of procedural machinations, including early adjudication of cases through motions to dismiss; and how the law might better respond as a whole to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to serve as a transparent proxy to censor cultural or political opponents.
