Federal law must fix loophole allowing abusive lawsuits targeting speech

Elon Musk’s “thermonuclear” and totally frivolous lawsuit against nonprofit Media Matters is still working its way through the courts, but outside the courtroom, Musk has scored one victory in his ongoing war to squelch his critics. 

Media Matters recently announced that it’s laying off at least a dozen staffers, blaming a “legal assault on multiple fronts.” Those include Musk’s lawsuit over Media Matters’ report about hate speech on X and the investigations by Republican state attorneys general that followed.

The layoffs are a stark reminder of the threat posed by strategic lawsuits against public participation, or SLAPPs. SLAPPs are meritless lawsuits often brought by the wealthy and powerful and intended to silence criticism, activism or reporting.

SLAPPs threaten free speech, and they’re disturbingly common. Even if SLAPP defendants prevail, they can still lose by being forced to spend time and money defending themselves. Fear of SLAPPs can chill news reporting and other speech.

Musk’s lawsuit against Media Matter is a SLAPP against an outlet known for its liberal perspective. But those who side with Musk over Media Matters shouldn’t assume SLAPPs aren’t their problem. Many SLAPPs aren’t political, and when they are, they can target conservatives, too.

In 2023, for instance, a professor at University of Notre Dame filed a defamation lawsuit against the Irish Rover, a student-run, conservative Catholic newspaper, after it published a news story about her pro-choice activism. The professor argued that a private student newspaper at a private university doesn’t have First Amendment rights. 

Thanks to the Indiana anti-SLAPP law, the court was able to quickly dismiss that ridiculous argument and the lawsuit, but not before the Irish Rover spent more than $175,000 defending itself. The newspaper has asked the court to force the professor to repay its fees under the state anti-SLAPP law. 

This is just one example of how state anti-SLAPP laws can help beat meritless lawsuits and protect free speech. These laws defang SLAPPs by allowing frivolous cases to be dismissed early and by requiring losing plaintiffs to pay the defendants’ attorneys’ fees. SLAPPs become less effective when plaintiffs can’t punish people with exorbitant costs to defend themselves. 

However, a growing gap in federal protection could leave First Amendment rights vulnerable to abusive lawsuits. We need a federal anti-SLAPP law before anti-speech billionaires can put more journalists out of their jobs.     

Even as state anti-SLAPP laws become more common, federal courts are limiting their efficacy by holding that they don’t apply unless you’re sued in state court. The latest decision comes from a federal trial court in Kentucky, which last month decided that the Kentucky anti-SLAPP law, adopted in 2022, doesn’t apply in federal court. 

Other federal courts are split on this issue. Some have decided that state anti-SLAPP laws apply in federal court, while others have held that they don’t. Musk likely brought his lawsuit against Media Matters in federal court in Texas because the 5th Circuit, which Texas falls under, has held that the Texas anti-SLAPP statute doesn’t apply in federal court.

This mishmash of legal precedent means journalists often don’t know what protection they’ll have if they face a SLAPP, even if they live in a state with an anti-SLAPP law. It can also encourage SLAPP plaintiffs to shop around for the best court in which to sue their critics. With creative lawyering, SLAPP plaintiffs can engineer their lawsuits to be brought in federal courts in jurisdictions that don’t apply state anti-SLAPP law. 

There have been several attempts to get the Supreme Court to weigh in on the applicability of state anti-SLAPP laws in federal court. So far, however, the court hasn’t taken up a relevant case and, even if it did, it could decide against applying state anti-SLAPP laws in federal courts.

There’s another, better solution than waiting for the Supreme Court to decide. Congress can act. Lawmakers have repeatedly introduced federal anti-SLAPP legislation, which would give journalists and others protection in federal court. 

But this Congress has yet to introduce a federal anti-SLAPP bill. It should, and quickly. A strong federal anti-SLAPP law would be a bipartisan win for free speech. 

Such a law should require plaintiffs in lawsuits based on speech to show that their case has merit early, and provide for quick and early dismissal if they can’t. It should also limit discovery while motions to dismiss are pending so SLAPP plaintiffs can’t run up victims’ costs, automatically award attorneys’ fees to winning SLAPP defendants, and allow for immediate appeals of denials of motions to dismiss.

Many states — both red and blue — have made clear that they want to protect their citizens’ freedom of speech from meritless litigation. It’s time for Congress to act to ensure that federal courts don’t thwart those protections. It’s time to pass a federal anti-SLAPP law. 

Caitlin Vogus is the deputy director of advocacy at the Freedom of the Press Foundation and a First Amendment attorney.