Open and free internet-based platforms are seen as an enabler of global free expression, releasing writers from commercial and space constraints. However, many are working without the assistance of ...an in-house lawyer, or other legal resources. This may lead to undue suppression of public interest material, with important implications for freedom of expression and the democratic function of media. Two online surveys among digital and online journalists in England and Wales in 2013 indicated that the majority of encounters with defamation and privacy law take place outside the courts, with few formally recorded legal actions. This was particularly evident in a sample of 'hyperlocal' and local community publishers. In light of the results, this paper calls for a reappraisal of overly simplistic judicial and media applications of the 'chilling effect' doctrine, in order to expose its subjectivities and complexities. Additionally, attention needs to be paid to global and cross-jurisdictional media-legal environments, in order to help develop better internet policy and legal frameworks for protecting legitimate expression.
In recent years, 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 goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant's right to free speech through the prospect of ruinously expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, which allow a defendant to file an expedited motion to dispose of the SLAPP suit before engaging in costly discovery. It is well established that a federal court sitting in diversity applies state substantive law and federal procedural rules. Following the Supreme Court's opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., however, it is unclear whether the state-level anti-SLAPP special motions to dismiss should apply in federal courts. This Note discusses Shady Grove and examines how two lower courts have struggled to make sense of Shady Grove in the context of state anti-SLAPP special motions to dismiss. This Note then proposes a more nuanced, two-pronged interpretation for determining the applicability of state laws in federal courts. Applying this interpretation, this Note argues that state anti-SLAPP special motions to dismiss should apply in federal courts.
Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. Strategic Lawsuits Against Public Participation (SLAPP) are theoretically interesting precisely ...because they illustrate the disjunction between legal words and social ends. The idea that substantive First Amendment rules should take account of the transaction costs of litigating First Amendment rights is a deep insight. Bruce Johnson and Sarah Duran are concerned with how the costs of enforcing First Amendment doctrine affect actual participation in public discourse. Thomas Ambro and Paul Safier's argument is built on the premise that the pervasive First Amendment norm of content neutrality corresponds to the real and the true. But this premise is false. It turns out that the rule against content discrimination is applied in only limited circumstances. In the end we will define the boundaries of public discourse in ways that express our commitments to the value of democratic legitimation. These commitments invariably conflict with other complementary and inconsistent constitutional goals and values.
In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post promotes the concept of "democratic legitimation" as the cornerstone ...of democratic decision making. Post defines "democratic legitimation" as "all efforts" to influence "public opinion." As Post explains, "democracy requires that government action be tethered to public opinion" because "public opinion can direct government action in an endless variety of directions." As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have learned they can file a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of the SLAPP suit is to impede efforts to influence public opinion by intimidating the speaker with expensive and lengthy litigation. Since the late 1980s, states have reacted to SLAPP lawsuits by enacting anti-SLAPP statutes. Washington State has had a statute in place since 1989 that protects speakers from litigation resulting from statements made to government officials. In 2010, the Washington legislature expanded those protections by enacting Revised Code of Washington 4.24.510, which more broadly protects speakers who comment on matters of public concern. This Article reviews Post's theory of democratic legitimation and then looks at statutes across the nation and in Washington that are aimed at protecting speakers from litigation that seeks to chill the First Amendment rights of citizens who comment on matters of public concern. The Article concludes that Washington's new statute promotes Post's goal of democratic legitimation.
In March 2010, the Washington State Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. The new Act fills a critical void in Washington's protection of free ...expression and petition rights. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. This Comment offers interpretive guidance for Washington courts by examining the new law, its legislative history, its constitutional underpinnings, and its relationship to the influential California anti-SLAPP statute on which it is modeled. Although the Washington Act shares many identical provisions with the California statute, Washington's Act does include important deviations from the California model. This Comment embraces long-standing canons of statutory construction to argue that the Washington Act's deviations reveal a specific intent to reject certain aspects of the California law. Among these specific rejections is the California law's broader coverage of protected free expression. While California protects expression related to "issues of public interest," the Washington Act protects expression related only to "issues of public concern." Washington courts interpreting this important provision should reject California case law and embrace the "public concern" test established by the United States Supreme Court in Connick v. Myers, a test that already occupies solid ground in Washington case law. PUBLICATION ABSTRACT
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