More Anti-SLAPP laws needed to protect freedom of expression, particularly in the South

By Jared Schroeder

We need more anti-SLAPP laws. We also need better ones. And we need them in the South.

As it stands, a publisher in Georgia is freer to communicate ideas than one in Mississippi. Similarly, a publisher in Kentucky is safer to share ideas than one in South Carolina.

These comparisons might seem fundamentally inaccurate – and if we were strictly speaking about legal protections, they would be false. First Amendment safeguards apply equally to communicators in every state. The problem is a growing wave of malicious and frivolous lawsuits that circumvent these rights, giving powerful people and organizations the power to ruin and censor publishers, whether they’re journalists or people who simply turn to social media to share ideas.

The lawsuits, which are called Strategic Lawsuits Against Public Participation (SLAPPs), do not seek legal victories. In fact, the person who files them generally plans to lose in court. 

The Supreme Court, particularly in New York Times v. Sullivan, has interpreted the First Amendment as generally protecting the expression of truthful information. But what if a business owner, professional athlete, or political candidate is upset about a truthful newspaper report or critical opinion in a TikTok post? 

The law is, in most cases, on the publisher’s side, but in the process of the lawsuit, the publisher is forced to face extensive legal costs, the type that can destroy a small business or individual social media user while they defend themselves. They can also force the publisher into time-consuming meetings, exact an emotional toll, and create fear for others who might be considering publishing about them in the future. The person who files the lawsuit is, in other words, exploiting the legal system to buy fear and revenge. The Electronic Frontier Foundation recently labeled this problem as “censorship by lawsuit.”

These lawsuits work around the First Amendment because the harm comes in the legal process and not in the outcome. 

Thirty-eight states, including Georgia and Kentucky, have passed strong anti-SLAPP laws. These laws provide mechanisms to have frivolous, malicious lawsuits dismissed before they can create harm. 

Several southern states, however, do not have anti-SLAPP laws and, for that reason, publishers in those states, along with a group of holdout states in the upper Midwest and a few others, take on more risk when they publish than their counterparts in states with anti-SLAPP laws. 

Without anti-SLAPP laws, journalists, as well as everyday publishers, face lengthy lawsuits for their constitutionally protected speech. A school board leader in South Carolina, for example, sued one of the parents in his school district for defamation for posting negative comments about him on a Facebook group. Kevin Scully, who is facing the defamation lawsuit, told a South Carolina Senate hearing this spring, “I was being sued for defamation, for libel,” he said. “But the intent was to shut me up. And it was very effective. I have not said a word about that since.”

South Carolina doesn’t have an anti-SLAPP law, leaving Scully with few legal options to end a lawsuit that seems to have little merit. The bill South Carolina senators were considering did not become a law this session. 

Conversely, when a Bethlehem, Ga., city councilmember sued the Barrow News-Journal for its factual reporting in 2021 about a disagreement he had with a neighbor, the newspaper used the state’s anti-SLAPP law to have the lawsuit dismissed. 

We need more stories like the one in Georgia and fewer like the one in South Carolina.

Even some states that are counted as having anti-SLAPP laws provide too little protection. Missouri and New Mexico, for example, have weak or extremely specific anti-SLAPP laws, which limit the circumstances for when a SLAPP can be thrown out.

Missouri’s law only applies to speech during public hearings or meetings before government bodies and therefore can’t be used to protect against SLAPPs in other contexts. A bill to expand the anti-SLAPP protections failed to pass this session in the Missouri legislature. 

A good anti-SLAPP law, like the non-partisan Uniform Law Commission’s Public Expression Protection Act template, creates a mechanism for a publisher who believes they are facing a frivolous or malicious lawsuit about something they’ve published to file for an expedited dismissal of the lawsuit. If a judge agrees the lawsuit is a SLAPP, it can be thrown out quickly, limiting the lawsuit’s harms to the publisher. That’s what happened in the Georgia case. Many of these laws also provide a mechanism to force the person who filed a SLAPP to pay the publisher’s legal fees.

To be clear, these are not partisan laws. All types of states are taking action to protect freedom of expression. Montana, Idaho, and Iowa, which used the Uniform Law Commission template, are among the new anti-SLAPP states. Pennsylvania and Arizona updated existing anti-SLAPP laws last year.

In the past two years, nine states have recognized the threats these lawsuits pose to the flow of ideas in democratic society and have either added or revised anti-SLAPP protections. Only one Southern state, Kentucky, has joined the surge in protections recently.

South Carolina, Mississippi, Alabama and North Carolina don’t have any anti-SLAPP protections, and three others, Arkansas, Virginia, and Florida, provide weak or limited safeguards. 

We also need a federal anti-SLAPP law. A bipartisan group of senators proposed a version of the Uniform Law Commission’s template to create a federal anti-SLAPP law in December, but the bill went nowhere, just like the effort the year before.

These laws, on state and federal levels, are common-sense protections that limit powerful groups from harassing and ruining publishers. They protect freedom of expression and do nothing to limit lawsuits in which people have legitimate claims against publishers. 

The biggest challenge is getting these laws through the legislative process. The arguments are sound. Their value to democratic values is clear. Now we just need our state lawmakers to take up the bills – the Uniform Law Commission’s template has been successful in more than a dozen states – and put them up for a vote. Our free expression rights depend on it.

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Jared Schroeder is an associate professor at the Missouri School of Journalism. He and a team of students helped update the Reporters Committee for Freedom of the Press’ anti-SLAPP law resources in summer 2024. He is a member of the Overby Center panel of experts.