Stitt saves anti-SLAPP law

Monday, May 22, 2023, Gov. Kevin Stitt vetoed HB 1236, a bill that, by the change of a single word, would have significantly neutered Oklahoma's deterrent against Strategic Lawsuits Against Public Participation (SLAPPs). Deep-pocketed and powerful public figures have used meritless lawsuits to punish critics and chill free speech. The process is the punishment: Without anti-SLAPP laws, someone trying to crush critical speech can simply file a lawsuit, without even making a prima facie case that actionable defamation occurred. Even if the defendant ultimately prevails, the defendant faces enormous costs to defend the suit, privacy-invading discovery requests, and time and costs to respond to interrogatories and attend depositions, just to get to the point where the court would be willing to consider a dismissal, to say nothing of the additional time, stress, and expense involved in getting to a jury trial.

Anti-SLAPP laws like the Oklahoma Citizens Participation Act (OCPA) provide a bypass of the process-punishment by allowing for an early motion to dismiss, where the plaintiff has to put his cards on the table at the beginning of the process, and the defendant can move to dismiss on the basis of free-speech protecting precedents such as New York Times v. Sullivan.

Court of Civil Appeals Chief Judge Thomas Thornbrugh described the purpose of anti-SLAPP laws in Southwest Orthopaedic Specialists v. Allison:

Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against critics or opponents, with the intent of discouraging or silencing those critics by burdening them with the time, stress, and cost of a legal action. To carry out this purpose, anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed, in order to weed out meritless suits early in the litigation process.

Anti-SLAPP laws also protect speech by making falsely accused commentators and reporters whole for the funds they spent defending themselves, thus deterring meritless suits designed only to silence them. 12 O.S. 1438 states:

Section 1438. A. If the court orders dismissal of a legal action under the Oklahoma Citizens Participation Act, the court shall award to the moving party:

1. Court costs, reasonable attorney fees and other expenses incurred in defending against the legal action as justice and equity may require; and

2. Sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in the Oklahoma Citizens Participation Act.

HB 1236, which was co-authored by House Speaker Charles McCall and Senate Majority Floor Leader Greg McCortney, simply changed the "shall" highlighted above to "may."

In his veto message, Gov. Stitt explained his reasons for rejecting the bill:

Pursuant to the authority vested in me by Section 11 of Article VI of the Oklahoma Constitution,I have vetoed Enrolled House Bill 1236.

Enrolled House Bill 1236 would amend the Oklahoma Citizens Participation Act, which is
designed to deter lawsuits intended to chill Oklahomans' right of free speech, right to petition and right of association. Currently, defendants who secure dismissal of lawsuits under the Act are entitled to mandatory costs, attorney fees, other expenses, and potential sanctions. The Bill would make discretionary what is now mandatory.

Such a change would undermine the Act's purpose, ensuring a greater frequency of frivolous lawsuits against Oklahomans exercising free speech. Although I would support an amendment providing for mandatory attorney fees only when a strategic lawsuit against public participation (SLAPP) is found to be frivolous, this amendment would go too far in relaxing a needed deterrent.

For these reasons, I have vetoed Enrolled House Bill 1236.

If awarding costs was a matter of discretion, a district judge might take note of a plaintiff's money, power, and connections, and decline to impose court costs after dismissing a SLAPP case for failing to make a prima facie case. A district judge might be worried that a wealthy, powerful, and connected plaintiff might recruit an opponent for his re-election.

We live in a time when mainstream media organizations, press outlets with the resources to fight a lengthy court battle, have chosen to become mouthpieces for the powerful, "to afflict the afflicted and comfort the comfortable," to invert Mr. Dooley's appraisal of the newspaper business. If the public is to hear about the evil deeds and corrupt practices of the powerful, it will fall to courageous outsiders who would be devastated by attritional lawfare waged by the deep-pocketed. The Oklahoma Citizens Participation Act provides essential protection to these truth tellers. One of my proudest accomplishments in a quarter-century of public involvement is my part in getting the OCPA through the legislature, with the essential help and leadership of Rep. John Trebilcock, Sen. Rick Brinkley, and Sen. Anthony Sykes. Thank you, Governor Stitt, for protecting the law's ability to protect us.

MORE: Over the weekend, Jonathan Small, president of the other OCPA (Oklahoma Council of Public Affairs) urged Gov. Stitt to veto HB 1236:

"Special interests who have for years tried to silence Oklahoma conservative voices have now asked lawmakers to make it easier to stifle conservative views," Small said.

Under current law, a defendant sued for defamation who wins a motion to dismiss asserting a First Amendment privilege is entitled to costs, attorney fees, and a sanction "sufficient to deter the party who brought the legal action." ...

"The special interests lobbying for this bill are saying the quiet part out loud: they want to bully opposing voices with no accountability," Small said. "Governor Stitt has never been one to give in to bully tactics, and OCPA encourages him to veto this bill."

OCPA journalist Ray Carter quoted national organizations supporting press freedom on the importance of anti-SLAPP laws, with high praise for Oklahoma's law:

The Institute for Free Speech ranks Oklahoma's current anti-SLAPP law among the best in the nation, noting the law "protects the exercise of the right of free speech, right to petition, and right to association."

"Anti-SLAPP statutes are designed to address a structural problem within American law: namely, an unscrupulous litigant can use litigation strategically to suppress or punish speech he or she dislikes," the Institute for Free Speech notes. "Such a litigant would typically claim that the speech constituted defamation and then sue others to harass them, silence them, or force them to bear significant litigation costs. Those who are faced with such a lawsuit ... are often presented with a harsh choice - accede to the litigant's demand for settlement (which may include paying compensation, ceasing criticism, and apologizing) or continue to bear heavy legal fees as the suit progresses. Either choice may entail substantial losses of speech, reputation, time, and money. These are costs defendants must bear even when faced with lawsuits that plaintiffs have a minimal chance of winning."

The Institute says that strong anti-SLAPP laws like Oklahoma's current law "encourage potential plaintiffs to think twice before hauling speakers into court with weak or frivolous cases."

The Reporters Committee for Freedom of the Press notes, "SLAPPs have become an all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings."

The Reporters Committee notes that strong anti-SLAPP laws, such as the one that currently exists in Oklahoma, "are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights. In terms of reporting, news organizations and individual journalists can use anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an enterprise or investigative story."

Writing for the Nieman Journalism Lab in 2021, Peter Coe, a lecturer in law at the University of Reading, noted that SLAPP lawsuits were "increasingly being used by powerful people to shut down criticism from activists, academics, whistleblowers, and journalists."

"SLAPPs are used to try to prevent the public from learning about matters of public interest that could harm the reputation of a company or government," Coe wrote. "They typically take the form of defamation lawsuits, but very often the companies or individuals who start these claims know they will never win. Rather, the aim of the claim (what makes it a SLAPP) is to dissuade journalists from reporting on a controversial story by making it as costly and time-consuming as possible."

UPDATE 2023/05/25: An attempt to override the veto this morning failed overwhelmingly, with only 36 House members voting to override and 61 voting to sustain. I'm told that House rules would allow another override attempt, perhaps after additional arm-twisting. Contact your state rep and encourage him or her to vote against any further attempts. OCPA's Jonathan Small announced that any vote in favor of override would be scored negatively in their ratings of legislators.