Upping the Ante: Rethinking Anti-SLAPP Laws in the Age of the Internet

IntroductionPractically every discussion of anti-SLAPP legislation and litigation begins with an acknowledgement of Professors George Pring and Penelope Canan.1 In fact, the now ubiquitous term "SLAPP," an acronym for "Strategic Lawsuits Against Public Participation," was coined by Pring and Canan in the mid-1980s.2 Their ten-year study of 247 separate lawsuits first identified "[a] new breed of lawsuits . . . stalking America."3 These lawsuits, known as SLAPPs, are a pernicious form of meritless legal action intended solely to retaliate against the exercise of petition and speech rights.4 Pring and Canan's expose of SLAPPs forms the key theoretical justification5 (and only empirical basis6) for an ongoing slew of legislation meant to curb such strategic litigation. At least twentynine states,7 the District of Columbia, and the territory of Guam8 have enacted some form of anti-SLAPP legislation since Pring and Canan first published their study. Recent lobbying efforts by reporters,9 citizens' rights groups,10 and even the American Bar Association11 aim to pass an anti-SLAPP statute at the federal level to provide broad-based protection for speech and petitioning.12The difficulty with this legislation lies not in its goals, but in its outdated empirical basis and incomplete theoretical justification. The push for federal anti-SLAPP legislation and expanded legislation at the state level is justified by Pring and Canan's narrow study and galvanized by stories of brave individuals speaking out against large corporate interests and being sued into silence.13 This narrative fails to account for two recent and substantial shifts in the law and society: first, the expansion of anti-SLAPP protections beyond Pring and Canan's original focus on petitioning activity to any statement in a public forum in connection to an issue of public interest14 and, second, the expansion of public discourse on to the Internet.15 Taken together, these two shifts mean that anti-SLAPP laws are now thoroughly entangled in the web of Internet defamation law. While such statutes have always balanced the dueling interests of free speech and redress for defamation,16 the expansion of anti-SLAPP laws to Internet speech dramatically raises the stakes for both speakers and those they speak about. For instance, the potential for viral libel and the permanence of defamatory statements made on the internet compound the potential harms to victims of defamation. on the other hand, even legitimate defamation actions can chill vital speech on the most crucial public forum of our age-the Internet. Pring and Canan's theoretical justification for anti-SLAPP, focused exclusively on the threat posed by sLAPPs to petitioning activity, simply does not account for these risks.Thus, this Comment proposes an empirical and theoretical reevaluation of anti-SLAPP laws in light of changed circumstances. Once policymakers have an accurate idea of the reach of anti-SLAPP laws and the actual interests involved, they can properly calibrate the standard of proof requirements to match those interests. This rethinking of anti-SLAPP would ensure that these laws correctly balance the interests they were designed to address.Part I of this Comment explains the philosophy and mechanics of anti-SLAPP statutes. Part II explores the new dynamic created by the introduction of defamation law to Internet-based speech, with a focus on blogs, social networks, and consumer review sites. This Part also links the philosophy of anti-SLAPP laws to this new dynamic. Part III provides specific examples of the intersection of Internet defamation and anti-SLAPP laws and explains the application of these examples to a fundamental rethinking of anti-SLAPP rhetoric and structure. Part IV summarizes the need for a theoretical and empirical reevaluation of anti-SLAPP laws, outlines potential starting points, and concludes.I. The Creation and Expansion of Anti-SLAPP LegislationIn its purest form, a SLAPP involves a filer using the threat of a lawsuit to intimidate individuals and community groups into silence. …