Two relatively recent cases caught my eye and reinforced why it is so important that DC passed anti-SLAPP legislation last year.
In King v. Hludzenski, filed in a New York state court north of Syracuse, the plaintiffs are former town officials and other public figures who allege that two bloggers, allegedly highly critical of the town’s plans to install wind farms, defamed them. And in Thomas v. Barrett, filed in a Michigan federal court, two animal rescue organizations and its owners allege that several North Carolina defendants defamed them by making comments on Facebook.
Now I don’t know if the plaintiffs in either case will be able to prevail on their libel claims, which typically requires a showing that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
But it is clear that the lawsuits will cause the defendants to incur substantial fees to defend themselves against what look like typical SLAPP suits (indeed, the King plaintiffs not only sued the bloggers, but promise to seek the identify of various anonymous commenters and name them as defendants, which will undoubtedly have a chilling effect on speech).
While it is possible that the defendants may ultimately prevail against these suits, even if they do, they will have incurred significant fees defending themselves; fees that likely will never be recovered. (New York has a narrow SLAPP statute, while North Carolina does not have a SLAPP statute).
These suits show why it is so critical that DC passed broad anti-SLAPP legislation. If the case has merit, the plaintiff should be able to make that showing at an early stage and overcome the anti-SLAPP motion. But if the case lacks merit, as is so often the case, the defendant can dispose of it without incurring significant fees, and can potentially recover the fees it has paid.