The Speak Free Act: Explanation and Analysis
The Speak Free Act is a new bill swirling its way through Capitol Hill’s intern-saturated halls. A bi-partisan proposal endorsed by both the technology lobby and free speech advocates, the proposed law is meant to curtail illegitimate legal threats over online reviews. But will it hurt small businesses?
Is everyone happy about the bill? Of course not. However, there is substantial support for the proposal. And why not: it’s an election year. What better – and let’s face it, safer – topic to champion than free speech? You’d be hard pressed to find a voter opposed to First Amendment rights.
Is the bill a redundant piece of anti-censorship legislation? Or, is it a wolf in bi-partisan, kumbaya clothing?
Will this bill be terrible for small businesses lacking huge budgets to:
- Maintain a high-profile search engine optimization campaign;
- Enlist the help of lawyers every time a competitor pelts them with a fake online review?
First Things First: Explanation of a SLAPP Lawsuit
Before delving into the nuts and bolts of the Speak Free Act of 2015, we must discuss Strategic Lawsuits against Public Participation – a.k.a., SLAPP Lawsuits.
What is a SLAPP Lawsuit?
Parties with “deep pockets” usually file SLAPP suits against ostensibly penury parties. What differentiates SLAPP lawsuits from “regular” defamation lawsuits is the typically tenuous nature of the claim. The true purpose of the filing is not legitimate redress, but instead an intimidation tactic targeting the defendant’s bank account and stress triggers.
The theory goes that defendants in such situations, paralyzed by fears of legal costs and protracted litigation, will fold in the face of “power,” and stand-down from a defamation battle they may have won.
Not All States Have Anti-SLAPP Laws, Which Is Why Some People Are Clamoring For A Federal One
Advocates want a Federal anti-SLAPP law because not all states have one. As a result, sometimes people go “jurisdiction shopping” to file questionable claims in states that either a) don’t have an anti-SLAPP statute or b) a very weak one.
An Increase in SLAPPs since “The Internet”
The Internet allows for greater participation in matters of public concern. Concordantly, the number of SLAPP lawsuits has skyrocketed over the past ten years. As a result, free speech advocates have been pushing politicians to pass a federal law that aims to eradicate weak defamation lawsuits.
Explanation of the 2015 Speak Free Act
H.R. 2304: Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015. https://www.govtrack.us/congress/bills/114/hr2304
A bi-partisan effort, Republican Blake Farenthold from Texas and Democrat Anna Eshoo from California are the primary co-sponsors of the 2015 Speak Free Act.
How It Would Work
Anybody who feels they’ve been unjustly hit with a defamation lawsuit could file a special motion protesting the claim. If, in said motion, the aggrieved party can sufficiently argue the likelihood of their success at trial, a judge could dismiss the case “with prejudice” – and the defendant would, under provisions of the bill, be able to recoup legal fees from the plaintiff.
A Victory for The Yelp! Lobby?
In 2014, Yelp rooted a lobbying presence on K Street. And it appears that the money was well spent.
Some folks on Capitol Hill credit the “Yelp lobby” for pushing through H.R. 2304. Previously, the issue was exceptionally partisan. Democrats and Republicans could not agree. But once “neutral” Yelp stepped up, opinions shifted; things happened. A D.C.-based policy director, Evan Mascagni, explained:
“Yelp’s involvement has been huge. It has been really tremendous for the cause.”
Defamation Lawyer Contact Information
Did you land on this page because you need a defamation law question answered? If yes, get in touch with Kelly Warner. We have a dedicated slander and libel practice and our team excels at Internet defamation cases.
Eggerton, J. (2015, May 13). SPEAK FREE Act Introduced To Protect Online Criticism. Retrieved September 30, 2015, from http://www.broadcastingcable.com/news/washington/speak-free-act-introduced-protect-online-criticism/140841 SPEAK FREE Act of 2015. (n.d.). Retrieved September 30, 2015, from http://www.anti-slapp.org/speakfreeact/