Last week four Republican State Senators introduced the Ohio Citizen Participation Act
in the General Assembly, a bill that would add Ohio to the list of 28 other states with an anti-SLAPP law on the books.
The acronym “SLAPP” stands for Strategic Lawsuit Against Public Participation, and refers to baseless lawsuits (often alleging defamation) filed against individuals exercising their First Amendment rights. Examples of SLAPP suits can include:
- Lawsuits filed against victims of domestic violence when they report and speak out against their abusers;
- Lawsuits filed against those who criticize public officials or businesses; and
- Lawsuits filed against internet commenters engaging in free expression or who post negative product reviews in online forums.
SLAPP suits are often filed so that defendants must choose between exercising those rights or spending months (if not years) paying attorneys to defend against meritless claims. Anti-SLAPP laws nationwide typically require courts to award attorney fees in favor of defendants who prevail in meritless defamation lawsuits, and the Ohio Citizen Participation Act would follow that trend.
Under current law, an Ohio court can award sanctions against a party and its attorney for filing a frivolous defamation lawsuit. See, e.g., Oakley v. Nolan
, 4th Dist. No. 06CA36, 2007-Ohio-4794 (sanctions awarded against the plaintiff and the plaintiff’s attorney, jointly and severally, where the plaintiff “never denied the truth of [the defendant’s] communications” and that “reasonable inquiry by [the plaintiff’s] counsel of record would have revealed the inadequacy of the defamation claim, and thus, its frivolity.”)
In reality, though, sanctions can be difficult to obtain – often only being awarded after a lawsuit is concluded and the defendant has incurred thousands of dollars in attorney fees following months of litigation. Recognizing this unfortunate fact, the Act is modeled after laws in other states (including Texas and Nevada) to allow Courts to dispose of meritless cases in a more expeditious manner.
In 2014, the Eighth District Court of Appeals commented on Ohio’s lack of an anti-SLAPP law in affirming summary judgment in favor of a defendant in a defamation case:
This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech. These suits, referred to as strategic lawsuits against public participation ("SLAPP"), can be devastating to individual defendants or small news organizations and act to chill criticism and debate. The fact that the Chagrin Valley Times website has been scrubbed of all mention of Murray or this protest is an example of the chilling effects this has. Many states provide that plaintiffs pay the attorney fees of successful defendants and for abbreviated disposition of cases. In this era of decentralized journalism where the internet has empowered individuals with broad reach, society must balance competing privacy interests with freedom of speech. Given Ohio's particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.
Murray v. Chagrin Valley Publ. Co
., 8th Dist. No. 101394, 2014-Ohio-5442, ¶ 40.
Among other things, the Act would:
- Permit defendants facing SLAPP suits to file a special motion to strike within 60 days of being served with a SLAPP complaint;
- Give courts the authority to grant the defendant’s motion and dismiss actions if the complaint is based on a “protected communication;”
- Limit discovery that is not necessary for a court to decide the motion; and
- Require courts to award attorney fees if the special motion to strike is granted. Conversely, if a defendant files a frivolous motion to strike, a court may award attorney fees in favor of the plaintiff.
Under the Act, a “protected communication” generally includes speech that is protected by the Ohio an United States Constitutions, including speech regarding issues of public interest and concern.
The Act includes procedural requirements to protect anonymous speakers who exercise their First Amendment rights online. These procedures are modeled on the holding of Dendrite International, Inc. v. Doe
, 775 A.2d 756 (N.J. App 2001), which has been adopted by courts in a number of other states. The Act would require plaintiffs to obtain leave of court before subpoenaing the identity of an anonymous online speaker by showing the claim has merit. Then, after leave is obtained, the speaker must be notified and have an opportunity to contest the subpoena before his or her identity can be revealed.
The Ohio Citizen Participation Act is supported by a number of organizations, including the Ohio News Media Association, the Ohio Association of Broadcasters, the Ohio Domestic Violence Network, the 1851 Center for Constitutional Law, the Motion Picture Association of America, and the Ohio chapter of the American Civil Liberties Union.
Insurance providers can also be positively impacted by the adoption of anti-SLAPP legislation, as it would expedite court processes to dismiss cases and would entitle providers to recoup mandatory attorney fees defending against frivolous claims.
The Ohio Citizen Participation Act has not yet been assigned to a Senate Committee. Hearings on the bill, if any, are likely to be held this fall or early 2018.
If you would like to learn more about the Ohio Citizen Participation Act or SLAPP suits in general, please contact Tom Haren
or another attorney in Frantz Ward’s litigation group. Tom Haren, having defended clients in SLAPP litigation, consulted during the drafting of the Ohio Citizen Participation Act.