Today, I bring you a guest blogger. Samantha Brown is the legislative director of the Federal Anti-SLAPP Project which is an organization based in Washington DC that works to end SLAPP lawsuits and promote free speech. Ms. Brown wrote a piece about this case for their blog a few weeks ago titled, "Butler University's Lawsuit Textbook CyberSLAPP." Here, she explains a little bit about SLAPP suits and the dangerous precedent that Butler's actions are setting. I encourage you to check out the links that she provides and to comment on what she has to say.
Teaching Moments from BU’s Suit Against Jess Zimmerman
by Samantha Brown
Federal Anti-SLAPP Project
Institutions of higher learning remain our country's bastions of cutting-edge thought and expression, and a student’s entry to college is marked by an expectation that they will, perhaps for the first time, think critically about the world around them, while taking steps toward intellectual and social independence. With some exceptions, even dissident student voices should be welcomed and encouraged, as a rite of passage, and as an important step in the path toward adulthood and responsible citizenship.
Butler University seems to have forgotten about this important role in the development of their students. When one of its own operated an anonymous blog featuring comments critical of some University faculty, the University opted not to engage with the blogger, respond to his concerns, or even take them in stride as participation in university life that should be encouraged.
Instead, Butler threatened the blogger with a lawsuit if the blog wasn’t taken down. The blogger, confronted with the vast resources of a university, complied, removing the blog and all posts.
Butler sued anyway.
Several months into the litigation, Butler learned the identity of the anonymous blogger – a 20-year-old sophomore named Jess Zimmerman. Butler offered Zimmerman the chance to drop the lawsuit if he would agree to an internal university sanctioning process. Zimmerman declined that offer, and Butler pressed ahead for several more months, despite calls from faculty to stop the lawsuit, and despite some scholarly and media opinion finding the lawsuit groundless and very unlikely to win.
Unfortunately, Zimmerman is not the first to face a groundless lawsuit because he spoke out about an issue important to his community. Such lawsuits are so common that they have earned a descriptive acronym: Strategic Lawsuits Against Public Participation, or SLAPPs. SLAPPs are meritless lawsuits brought against a person or organization for urging a government result or speaking out on an issue of public interest.
Butler's lawsuit against Zimmerman has characteristics of a CyberSLAPP, a particular type of SLAPP, wherein a defendant brings an often completely frivolous or groundless lawsuit against an anonymous speaker, in order to have the court force the speaker to reveal his or her identity. Once a SLAPPer learns the identity of an anonymous speaker, it can drop the meritless lawsuit and proceed with other methods of harassment or retaliation. Employers who suspect that employees may be leaking unfavorable information may use this tactic to discover the identity of an online poster, for example. And Butler seems to have used this model in seeking Zimmerman's identity.
The threat of a lawsuit alone often causes citizens to censor themselves, as when Zimmerman first took down his blog in the face of Butler’s litigation threat. And once someone is sued, even a mertiless lawsuit can take years and thousands of dollars to defend against. Judge J. Nicolas Colabella, of the New York Supreme Court, has said of SLAPPs that, “Short of a gun to the head, a greater threat to First Amendment freedoms can scarcely be imagined.”
But while Zimmerman is not alone in being sued for exercising his first amendment rights, his continued exercise of those rights may put him in the minority of SLAPP victims. Perhaps because his first attempt to avoid trouble by taking down the blog was unsuccessful, or perhaps because he is backed by well-known First Amendment advocates such as FIRE (The Foundation for Individual Rights in Education) and Reporters Without Borders, or perhaps on principle alone, Zimmerman has remained steadfast. He now operates this blog to chronicle the on-going dispute with the university.
State legislatures, judges, practitioners and academics have recognized and documented the disturbing use of SLAPPs as a scare tactic by those who wish to stifle participation in government or expression about matters of public interest. Twenty eight states have anti-SLAPP protections that vary widely in scope and level of protection, and the extent to which the state laws apply in federal courts is unclear. Existing federal doctrine and Rules of Civil Procedure provide only partial protection against SLAPPs in federal court. The current lack of uniformity in SLAPP protection encourages SLAPP plaintiffs to shop for a friendly court, and results in disparate first amendment protections depending on where the suit is filed.
To provide uniform, comprehensive protection for first amendment rights, the Federal Anti-SLAPP Project (FASP) has written and is working to secure federal anti-SLAPP legislation. The proposed Citizen Participation Act (CPA), which Rep. Steve Cohen (D-TN) plans to introduce this year, provides the tools to combat SLAPPs: a substantive right of immunity for petition activity, a uniform method of identifying, dismissing and remedying SLAPPs in federal courts, and a procedure to protect SLAPP defendants who are SLAPPed in state court. The CPA would further provide special protections for anonymous speech, by requiring those who seek an anonymous speaker’s identity in a CyberSLAPP to prove that their case has minimum merit before being allowed to do so.
Civics 101 teaches that free expression is the foundation of our democracy and is essential to public health, community well-being, and economic prosperity. Rather than stress the importance of civic engagement, however, Butler University opted in this instance to punish it, and sought to silence it with the egregious use of the courts as a gag.
For more information about the Federal Anti-SLAPP Project, please see our website or contact Samantha Brown at (sb)[at](anti-slapp[dot]org).