The powerful often sue their critics into silence. A new federal anti-SLAPP bill would grant a chance to fight back.

Corporations and powerful individuals often use Strategic Lawsuits Against Public Participation, or SLAPPs, to take potshots at democracy.

In 2007, when workers at a Tar Heel, NC meatpacking plant tried to organize against low pay and unsafe working conditions, their employer, Smithfield Farms, struck back hard. But the meatpacking plant didn’t just resort to standard union-busting tactics. Instead, Smithfield headed for the courts. 

As part of the union drive, local prospective members of the United Food and Commercial Workers International deployed classic organizing tactics: engaging in boycotts, putting out press releases, building coalitions, and holding the occasional protest at stockholder meetings. As part of their activism, union organizers filed OSHA complaints, raised concerns with environmental boards, and testified in support of city resolutions condemning Smithfield Farms’ unfair labor practices. These activities - and union organizing itself - are protected by the First Amendment, but that didn’t stop Smithfield Farms. The company filed a lawsuit under the state Racketeer Influenced and Corrupt Organizations Act, an intentionally vague law designed to prosecute mobsters who were too slippery to be ensnared by existing law. Stretching the parameters of the statute, Smithfield Farms tried to argue that union organizing was extortion akin to mob reigns of terror, with one of their lawyers, G. Robert Blakely, characterizing the union’s actions as “economic warfare.” Reporting on the case, a contemporaneous New York Times article remarked, “what Mr. Blakely calls extortion sounds quite a bit like free speech.” The union was forced to fight in court to defend their right to organize and hold demonstrations, spending down their coffers to do so.

Indeed, Smithfield Farms’ lawsuit targeted key First Amendment freedoms: free speech, free association, and the right to petition the government. One complaint criticized a union organizer for quoting the iconic muckraker Upton Sinclair. Smithfield acknowledged that this speech was protected by the First Amendment - but argued for its inclusion in the RICO suit anyway. The arguments made in the suit were absurd; in a world where Smithfield prevailed, everyday people and political organizers attempting to restrain corporate abuse, address poor policy decisions, or highlight government wrongdoing would fear legal repercussions simply for exercising their rights to petition the government. The suit likely didn’t stand a chance - but Smithfield filed it anyway. 

Defending Rights & Dissent and other free speech organizations criticized the suit as a Strategic Lawsuit Against Public Participation (SLAPP) because the intent of the lawsuit was to penalize and suppress First Amendment-protected activity. A hallmark of SLAPPS, the outcome was less important than the process. By striking fear into organizers and forcing the union to spend money on legal bills, Smithfield could impede union activities. 

In the end, the union reached an eleventh hour settlement with Smithfield Foods. Perhaps, faced with the prospect of defending racketeering allegations in front of a jury, Smithfield capitulated, opting to drop its pursuit of multimillion dollar damages. A year of legal fees later, the union extracted a settlement establishing the rules for a union vote. 

But the suit should never have reached that point. At the time, Virginia, where the suit was filed, had no law protecting defendants from SLAPPs. Smithfield Farms had made the strategic calculus to file the suit in Virginia - despite all of the alleged conduct taking place in North Carolina - to decrease the chances that the suit would be immediately thrown out of court. Without protections, the union faced hefty legal bills and heavy-handed intimidation tactics. 

Filing lawsuits and venue shopping, as happened in the Smithfield case, are common tactics powerful people and corporations use to sue critics into silence. Winning isn’t the point. In the US legal system, anyone with deep enough pockets can file a lawsuit, dragging their opponents through years of proceedings, racking up legal bills all the while. Ultimately, it doesn’t much matter whether the plaintiff prevails on the merits; the goal is to hijack the legal system to intimidate and bankrupt opponents. 

The danger of SLAPPs is not that they’ll succeed. It’s that the targets may stand down long before a judge ever rules on the merits. The targets of SLAPPs - journalists, nonprofits, unions, or simply courageous individuals - are often short on funds and daunted by the prospect of years of legal woes. No matter how meritless, SLAPPs can silence speech simply because the defendants can’t afford the fight. In one example, a survivor of domestic violence speaking out against her ex-husband was forced into a settlement that limited where she could speak, simply because she ran out of funds to take the case to trial. 

SLAPPs don’t just endanger free speech; they also take aim at a free press. When reporting draws ire, certain figures are not shy about filing SLAPPs, usually alleging defamation, to try to force journalists to back down. The Supreme Court has set a high bar for public figures to prevail in defamation suits, recognizing the need for “breathing space” for free speech and a free press. But constitutional impediments don’t block powerful figures from filing doomed lawsuits. Devin Nunes, a former Republican member of Congress, filed so many SLAPPs that the Washington Post published an op-ed entitled “Raise your hand if you have not been sued by Devin Nunes.” Nunes sued The Washington Post, CNN, Esquire Magazine, and the parent company of the Fresno Bee, the largest newspaper in his district. Almost all of the claims made in Nunes’ flurry of lawsuits were thrown out, but each news organization was forced to fund a legal defense. In many cases, faced with daunting legal fees, news outlets opt to settle. Just this week, ABC News chose to pay out a $15 million settlement rather than fight Trump in court.  Bankrupting news organizations represents obvious abuse of the legal system, but there are gaps in protections against SLAPPs’ hijacking of the legal system. 

34 states and DC, recognizing the danger SLAPPs pose to free speech, have enacted anti-SLAPP legislation. The strength of protections varies state by state, but the federal venue has long been a gaping hole in the anti-SLAPP landscape. Litigious corporations will often shop venues to file lawsuits, targeting jurisdictions with nonexistent to weak protections for defendants. 

A new bill introduced in the last Congress could foreclose the filing of SLAPPs in federal courts. On December 5, 2024, Senator Ron Wyden (D-OR) and Representatives Jamie Raskin (D-MD) and Kevin Kiley (R-CA) introduced the Free Speech Protection Act, which would provide an immediate mechanism of relief for the targets of SLAPPs filed in federal court, limiting their ability to progress through federal courts. A strong provision in the Free Speech Protection Act creates a special motion to dismiss, which a court must rule on within 90 days, thus accelerating the timeline for meritless lawsuits to be thrown out of court. If the defendant prevails, they may be entitled to recoup legal fees, providing a disincentive to litigiously minded corporations and individuals. 

Examples at the state level show the value of anti-SLAPP statutes. In 2016, Resolute Forest Products, a logging company, filed a $100 million lawsuit against Greenpeace under RICO, defamation, and state conspiracy statutes, intending to force Greenpeace to cease their “forest destroyer” campaign. Greenpeace eventually succeeded in transferring the venue to California, which has strong protections against SLAPPs. The case was dismissed, and Resolute Forest was ordered to pay $800,000 in attorney’s fees. 

The Free Speech Protection Act offers crucial protections to the journalists, activists, unions, advocacy groups and community groups targeted by wealthy corporations and individuals. The bill is expected to be reintroduced on a bipartisan, bicameral basis in the next Congress, and we urge its passage. 

The Constitution demands free speech rights for everyone - and the Free Speech Protection Act limits the ability of the powerful to exercise a de facto veto.