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SLAPP Litigation Shutting Down Activists, Media

Rachel Alexander, an attorney, is the editor of the Intellectual Conservative.

The left frequently resorts to the legal system to shut down conservatives, since the courts are dominated by the left. One way they do so is to file a groundless lawsuit known as a SLAPP, a strategic lawsuit against public participation. It's to shut down some type of free speech and usually takes the form of a defamation claim. The plaintiffs don't expect to win. Instead, the lawsuit is meant to intimidate and overwhelm a victim with costly litigation that can last years. Discovery alone can cost thousands of dollars.

The average activist, journalist or blogger doesn't make a big salary so they're easy targets. The smackdown also has a chilling effect on others who might be considering the same type of speech or speaking up to defend a victim.

Judges aren't able to discern at the beginning of one of these lawsuits that they are groundless. As a result, state legislatures around the country have started passing anti-SLAPP legislation. There are now 28 states with anti-SLAPP laws. They generally permit a victim to ask the court to dismiss one of these lawsuits early on. Penalties include awarding attorneys fees against the plaintiff.

One of the most notorious instigators of SLAPP lawsuits is Brett Kimberlin. He is a left-wing activist who was convicted of perpetrating the 1978 Speedway bombings. But when conservative bloggers mentioned his past in their articles, he came after them with lawsuits. He warned one conservative blogger, "I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what." That blogger, Patrick Frey, was fortunate enough to find pro bono counsel to represent him against the groundless lawsuit. But it took six years to wind down.

A fairly recent SLAPP lawsuit involved the "Clock Boy." Ahmed Mohamed brought a clock to high school that looked like a bomb. A teacher referred him to school administrators, and he was briefly arrested. His family claimed that it was discrimination because he was a Muslim. Several conservative pundits discussed the case in the media, some labeling it a hoax. The father of Mohamed filed a lawsuit against them. The case was eventually dismissed. David Yerushalmi, senior counsel at American Freedom Law Center, which represented one of the defendants, said it was "Islamist warfare," using lawsuits to label as "Islamophobic" any "public criticism of a sharia-centric, jihad-driven Islam."

In February, a professor who sued a conservative leaning scientific publication for defamation withdrew his $10 million lawsuit. Stanford University professor Mark Jacobson sued the National Academy of Sciences and Christopher Clack, an author who co-wrote a piece critical of Jacobsen. Jacobsen had suggested in a co-authored paper that renewable energy sources alone could power the U.S. by 2050. Clack wrote in in his critique, "We find that their analysis involves errors, inappropriate methods, and implausible assumptions." Jacobsen admitted after withdrawing his lawsuit, "It should never have gone to court in the first place. I was expecting them to settle."

These lawsuits strike close to home for me. I was recently threatened with a groundless defamation lawsuit over an article I wrote. The big name law firm gave me 24 hours to take the article down or legal action would be contemplated. When I didn't comply, they sent the same exact letter to my employer's address — apparently to intimidate my employer. The article wasn't even written for my employer, but in my personal capacity for another publication. They haven't sued me yet, but I'm not holding my breath. Fortunately I'm an attorney so I'm less afraid of legal mumbo jumbo than the average person. Others in my situation might have caved and taken down the article, effectively suppressing their free speech. Numerous friends advised me to delete the article, merely to avoid years of costly litigation.

Unfortunately, not all anti-SLAPP laws are broadly written to protect bloggers and journalists. Some only protect "issues of public interest." Aggressive litigants will forum shop to pick a state to sue in that either has no anti-SLAPP law or a weak version. There is no anti-SLAPP law on the federal level, so suing in federal court is another option. Trial lawyers, who contribute large amounts to the Democrats every year, have put up strong opposition to any federal legislation. This important legislation needs to be enacted everywhere in its strongest form, otherwise the First Amendment is in jeopardy.

Rachel is the editor for and an attorney.

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