Oklahoma Politics: May 2023 Archives

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.

Tony Lauinger, State Chairman of Oklahomans for Life, who has tirelessly, for decades and at his own expense, lobbied on behalf of the unborn at the State Capitol, is calling on Oklahomans who oppose abortion to support SB 368. In his message below, Lauinger rightly points out the short-term thinking of those who insist on absolute abolition right now. The bill passed both houses overwhelmingly, but the Senate rejected the House's amendments, and the bill was referred to conference committee consisting of Senators Garvin, Rosino, Haste, Daniels, Treat, and Hicks and the standing House Conference Committee on Public Health, consisting of Representatives Roe, Hasenbeck, Newton, Randleman, Stark, and Ranson. (Sen. Hicks and Rep. Ranson are the only two Democrats on the conference committee.)

Oklahoma is a democracy, with a constitution that authorizes initiative and referendum. A law that is only supported by 4% of the population is vulnerable to a well-funded initiative petition campaign that would be cast as a choice between that "extreme" 4% position and a "moderate" position (abortion on demand) supported by 30% or more of the voters. SB 368, enacting restrictions supported by 71% of the population, offers a much more defensible position against counterattack. State courts are less likely to find an overwhelmingly popular law unconstitutional. Referendum backers will not see an easy target.

In 2017, the Kansas State Supreme Court struck down an anti-abortion law, finding a right to abortion in the Kansas state constitution's language stating that "all men are possessed of equal and inalienable natural rights." When legislators sent a constitutional amendment to the voters, asserting that the Kansas state constitution should not be construed to grant a right to abortion, the voters defeated it, with 59% voting no.

I trust Tony Lauinger's judgment, grounded as it is in years of his successful efforts to inform, persuade, and change hearts and minds, over that of the "principled" "abolitionists" who insist on the strictest terms and the harshest punishments right now. The ringleaders of that movement are at best dupes of the abortion industry or at worst its paid influencers, using emotional manipulation and religious guilt on Christians of tender conscience to push for laws that will trigger a pro-abortion backlash and turn the mushy middle, the persuadables, against protecting unborn children at all.

In time, Oklahomans who have been persuaded to see the humanity of the unborn child, worthy of legal protection, will see the logic of extending that protection regardless of the circumstances of conception. I came to that conclusion decades ago, but it didn't happen overnight.

Here's the email from Oklahomans for Life:

One Last Chance to Defend Unborn Child Against Unlimited Abortion on Demand in Oklahoma:

URGENT: Email Senate & House to Pass SB 368

Due to the heroic efforts of Senator Julie Daniels, we have one last chance to fortify Oklahoma's ability to defeat the abortion industry's constitutional amendment imposing unlimited abortion on demand on our state. Please send an email to senaterepub@okforlife.org and a second email to houserepub@okforlife.org urging SUPPORT for SB 368. Your two emails could be identical, and brief. Please send even if you have done so previously.

This essential pro-life legislation, which did not get approved earlier in the session, has been revised and inserted in a different bill. The new bill, SB 368, must pass both chambers of the legislature this week, before adjournment Friday. It is urgent to contact Senators and House members with emails of Support for SB 368. The goal is to provide permanent protection for future generations of Oklahoma children.

Two ominous developments have occurred in recent weeks. The Oklahoma Supreme Court showed its hostility to unborn children by striking down a pro-life law enacted last year, and Wisconsin became the latest state in which the abortion industry won a statewide election that centered on abortion. Pro-abortion forces are now 7-0 in statewide votes since Roe v. Wade was overturned last June: seven pro-abortion victories, zero pro-abortion defeats.

A poll of Oklahoma voters' attitudes about abortion shows our current criminal law, abortion prohibited except to save a mother's life, is supported by just four percent (4%) of Oklahoma voters. SB 368, which would prohibit ninety-five percent (95%) of all abortions, reflects a pro-life position enacted last year in Oklahoma's civil abortion law, which includes rape reported to law enforcement and incest of a minor reported to law enforcement, and is supported by 71% of Oklahoma voters.

Those thinking SB 368 is not pro-life "enough" are thinking short-term rather than recognizing the reality of pro-abortion momentum since Roe v Wade was overturned last June. The abortion industry has huge advantages in money and pro-abortion media bias, and the initiative-petition process in our state leaves us totally dependent on "the consent of the governed," raw democracy, in defending a position supported by only 4% of voters.

We have two choices:

1. modify our current law to fortify our state against the pro-abortion onslaught that is coming by enacting SB 368 which would prohibit 95% of all abortions and represents a pro-life position supported by 71% of Oklahoma voters; or

2. take the short-term approach, refuse to act, and then lose the right to life for ALL unborn children in Oklahoma when the constitutional amendment is adopted next year bringing unlimited, unrestricted abortion on demand to our state.

No unborn child in Oklahoma will have a right to life under the constitutional amendment the abortion industry will propose. That's the pro-abortion option.

Will the pro-life option be one that is supported by 4% of Oklahoma voters, or one that is supported by 71% of Oklahoma voters? That is what's at stake. That is why SB 368 is absolutely essential.

Please send an email to senaterepub@okforlife.org and a second email to houserepub@okforlife.org urging SUPPORT for SB 368.

Thank you.

Tony Lauinger, State Chairman

Food for thought: The abolitionists are basically recycling Never-Trumper arguments.

THE OTHER PERSPECTIVE: State Rep. Jim Olsen (R-Roland) explains his opposition to SB 368.

UPDATE 2023/05/24: Today, the Senate rescinded its rejection of the House amendments to its bill and also rescinded its request for a conference committee. From page 2 of this morning's Senate Journal:

Senator Garvin asked unanimous consent, which was granted, that the Senate rescind the rejection of the House amendments and the request for conference for SB 368.

What this would seem to mean is that the same bill, the version with House Amendments, has now been approved by both House and Senate.