SLAPP This: Florida Scores a Big Free Speech Victory Against Intimidation Lawsuits
FlaglerLive | August 27, 2015
By Sally Swartz
Florida lawmakers did one thing worth celebrating in this year’s Legislative Session: They approved, at long last, a law that protects residents from SLAPPs: Strategic Lawsuits Against Public Participation. Two champions deserve special credit for the success of the anti-SLAPP campaign: the Florida Press Association and the Motion Picture Association of America.
On the Treasure Coast, where residents have spent millions over the past few decades defending themselves against corporations and deep-pocket developers who tried to shut them up, the law offers hope.
A SLAPP suit purports to right a wrong but actually is brought to silence critics, often residents who speak out at public meetings or write letters to newspaper editors. It also can hamper movies, TV, radio and newspapers.
Previously, Florida law didn’t allow governments to sue individuals in retaliation for exercising their right to participate in governmental activities. Now the new law also protects residents from being victimized by SLAPPs filed either by private persons or corporations. It protects both speech made before a government entity and speech in connection with a play, movie, TV program, radio broadcast, audiovisual work, book, magazine article, musical work or news report.
The law is too late to help St. Lucie County residents who battled a corporation over a proposed bridge to Hutchinson Island. Or Martin residents who fought developer Bill Reily’s Pitchford’s Landing and Lake Point rockpit developers for the right to speak out in opposition to those projects.
But the law is a huge step forward for the future.
Sam Morley, general counsel for the Florida Press Association, and Ben Sheffner, vice president for legal affairs at the Motion Picture Association, praise two lawmakers: Republican state Sen. David Simmons of Altamonte Springs and Democratic state Rep. Jared Moskowitz of Coral Springs.
Martin County environmental lawyer Virginia Sherlock worked with the Florida Press Association several years ago to craft language for an anti-SLAPP law. But lawmakers in Martin and others statewide failed to get behind it.
“We’ve been working with Sen. Simmons the last couple of sessions,” Morley said. “Sen. Simmons took a really good lead, educating everybody, particularly other senators, on the issue.”
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. There is a difficulty in that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims. Thus, anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit). Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Nonetheless, anti-SLAPP are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.--From Wikipedia.
“We’re very happy with how things turned out,” said Sheffner, whose group represents six big movie studios. “California has strong anti-SLAPP legislation in place, and we all use it frequently. Now we’re making an effort to get new anti-SLAPP legislation passed around the country.”
Sheffner said little opposition surfaced as lawyers from 20th Century Fox and other studios spoke to lawmakers. They sold the anti-SLAPP law as the way to create a better legal environment in Florida for film and TV producers, as well as a big help to the press, TV stations and to little counties such as Martin, where developers use SLAPPS to smack down opponents.
Strong anti-SLAPP law “makes Florida a better place to do business,” Sheffner said. “No one should have to spend years in courts to exercise their constitutional rights” to free speech.
Martin residents who have suffered the financial and emotional consequences of SLAPPs didn’t anticipate help would come from such unexpected allies.
Now all that’s needed is a way to address SLAPPs still in the courts that were filed before the anti-SLAPP law took effect. Former County Commissioner Maggy Hurchalla, Martin County and the South Florida Water Management District still are involved in SLAPPs with Lake Point developers.
The 2015 Legislative Session was so loaded with disasters — such as Gov. Rick Scott’s and lawmakers’ arrogant misuse of money residents voted to spend saving environmental lands — that few noticed the quiet passage of the anti-SLAPP law. Thanks to the two lawmakers, the Florida Press Association and the Motion Picture Association, it’s a reality.
Sally Swartz was a member of The Palm Beach Post Editorial Board from 2000 to 2009 and continues to write columns for the paper. She was a reporter, bureau chief and columnist in the Martin County office. Swartz is the winner of the Martin County Conservation Alliance’s public service award, the Audubon Society of the Everglades Conservation Award, and the Conservation Alliance of St. Lucie County outstanding environmental journalist award. Reach her by email here.
The legislative analysis of the bill: