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Speech Designed to Shut Critics Up

by Peter Breggin MD & Ginger Breggin

Originally posted on America Out Loud Oct 24, 2022 | Constitution, Media, Politics

In the United States, the “public square” where ideas are supposed to be freely and robustly debated is heavily policed and controlled by the wealthy and powerful, who are prepared to bring meritless but financially catastrophic legal actions solely to intimidate their opposition, driving them away from public debate, and financially breaking them if they do not stop speaking up.

The foundation of freedom is free speech. The exchange of ideas, the rough and tumble debate, the questioning, and even ridicule are all part of hammering out a way forward in a nation of free persons. Free speech is fundamental to politics, to learning, to creating and growing community, and to being fully human.  

The ability to develop and give voice to opinions, ideas, concepts, and arguments is fundamental to intellectual life and development.  

The ability to express one’s views in public discourse is fundamental to a free people.

One of the most oppressive actions that can be taken to silence public discourse and suppress free speech is to file a legal complaint with the intention of coercing the targeted party to stop speaking. This kind of legal action is formally identified as a SLAPP suit. “At its most basic definition, a SLAPP suit is a civil complaint or counterclaim filed against people or organizations who speak out on issues of public interest or concern.” 

SLAPP = Strategic Lawsuit Against Public Participation

The definition of SLAPP Suit according to Merriam-Webster:

A lawsuit alleging defamation that is, in reality, brought for the purpose of intimidating, burdening, punishing, or harassing the defendant for speaking out against the plaintiff on matters of public interest

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism. — Gordon v. Marrone

Instead of contesting ideas in the open, some bullies hire lawyers to threaten SLAPP suits against people to shut them up under the threat of costly but frivolous lawsuits. SLAPP suits are a significant way of silencing the unwanted speech of others. The instigator bringing the SLAPP suit doesn’t even need to win his/her case. The act of sending a legal Demand Letter threatening to bring a lawsuit forces the opposing party to begin hiring expensive attorneys to defend against the suit.  

Many SLAPP suits are brought against individuals who publish opinions or contested facts in media outlets such as newspapers, radio, television, or via a public internet news platform such as America Out Loud. SLAPP suits are brought not necessarily to win in court, but to silence the critic. 

Defamation

SLAPP suits are often tied in with claims of defamation, libel, and/or slander. Legally, libel (written) or slander (spoken) is defined as “a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.”

Defamation is, first and foremost, a falsehood. If Joe Citizen has been found guilty in a court of law of child sex abuse and someone says that Joe Citizen has been found guilty of child sex abuse, that is not defamation, even if it is embarrassing to Joe, because it is a true statement.  

Elements of defamation include four aspects: “1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence, and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.” Different states in the US have various laws relating to defamation.

Another significant caveat of defamation exists when someone who feels slandered or libeled is famous. A person who is a public figure must prove that he/she was defamed with “actual malice.” 

The Legal Information Institute of Cornell Law School provides this explanation of the “Actual Malice Standard:”

Actual Malice Standard

In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that for a public official to succeed on a defamation claim, the official public plaintiff must show that the false, defaming statements were said with “actual malice.” The Sullivan court stated that “actual malice” means that the defendant told the defamatory statement “with the knowledge that it was false or with reckless disregard of whether it was false or not.” …The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by “clear and convincing” evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard. On this point, the Sullivan court’s precise language is that the plaintiff must show “the convincing clarity which the constitutional standard demands.”

Public figures who are thin-skinned and smarting from criticism or pushback of some sort against them may resort to sending legal demand letters and filing civil legal suits claiming defamation, even though, as a public figure, they have very little chance of winning the suit. There may be no genuine facts to back up their claims of defamation or libel/slander.

The act of filing the civil suit against their critic is often enough to completely silence the critic who can not afford and wishes to avoid the hundreds of thousands of dollars in legal fees to defend him or herself. 

SLAPP suits drive regular citizens out of public debate

SLAPP suits prevent regular citizens from participating in important public debates. Threatened by wealthy hostile actors with legal costs and fees that could bankrupt a middle-class family and impoverish a wealthier person, many individuals withdraw their statements, offer apologies, and fade from public view. We are left wondering how many of those apologies we see in the public arena are extorted from an individual in order to avoid massive legal fees and possible bankruptcy.

The ACLU has described a SLAPP suit as: “litigation intended to silence, censor and intimidate critics out of the marketplace of ideas by burdening them with the cost of a lawsuit they may not be able to afford.”

The act of merely filing a SLAPP suit can bring about the desired chilling effect. 

“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined,” according to the Judge in the original SLAPP suit of Gordon v. Marrone.”

Many states in the US have been implementing what is now called Anti-SLAPP suits that are designed to have rapid hearings by a court to establish some controls against the intimidation tactics of SLAPP suits. This is an imperfect solution as anti-SLAPP suit costs alone are often $40,000 or more. In some states like New York, when an Anti-SLAPP suit is won, the person who brought the SLAPP suit must pay all the victim’s expenses. Internationally, the government of the United Kingdom is creating reforms against SLAPP suits to help “level the playing field between wealthy claimants with deep pockets and defendants.” 

Until legislators and the court correct the suppression SLAPP suits have on free speech, the most controversial and critical issues of the day will continue to be decided not in any public forums but in secret, behind closed doors, by whoever is wealthy. What viewers and readers see and hear through media and on the internet may not often be the whole story. Remember that.