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Legal update: Anti-SLAPP and FERPA

June 15, 2009

Capitolbeat Members:

Our excellent attorney, Kevin Goldberg, has sent along two updates in recent weeks. The first was a request for information.

Some of you may have read recent stories regarding the overreaching and inconsistent application of the Federal Educational Rights and Privacy Act (“FERPA”), the federal law which protects student records at educational institutions which receive federal funding.  The Columbus Dispatch started this discussion with an article detailing the ways in which this law has been invoked to intentionally and unintentionally to withhold records that should otherwise be public. The Salt Lake Tribune, the Reno Gazette-Journal, the Lexington Herald-Leader, and the Evansville Courier and Press have since picked up the mantle with stories focusing on their local universities.

This Dispatch story  in particular hints at a potential Congressional fix.  I’ve been discussing this issue with representatives of other press organizations.  At this point, we’re simply seeking to collect instances where a reporter has sought relatively routine, non-grade related records from a public school, only to be told that the records cannot be given out due to FERPA.   We’ll be saving these for future reference whether or not we see an opportunity to discuss the issue with Members of Congress, as they can be instructive to other reporters who encounter similar roadblocks.   My experience is public schools, especially State Universities, are a huge part of statehouse coverage, so I’m thinking that many of you might be able of assistance.

Please contact me via phone or E-mail if you have a story to share.


Kevin M. Goldberg
Fletcher, Heald & Hildreth, P.L.C.

Capitolbeat Legal Counsel

Also, the Capitolbeat Board has voted to support the creation of federal Anti-SLAPP legislation. Here’s Kevin’s explanation of that:

Capitolbeat has joined an effort which seeks to protect against the filing of frivolous lawsuits against those speaking out on matters of public concern by becoming a formal supporter of federal “Anti-SLAPP” legislation.   There is currently draft legislation, titled the “Citizen Participation in Government and Society Act of 2009”, which is the product of several months’ worth of work amongst free speech advocates.

Going back to the very basics, the term “SLAPP” stands for “Strategic Lawsuit Against Public Participation”.   To put it plainly, this is a lawsuit – generally a defamation lawsuit, but it can be anything, such as an unfair trade practices action, tortious interference with business conduct, even copyright or trademark infringement – that is  threatened or filed in an attempt to keep a person from speaking out on an issue of public concern.  There’s often no real case behind the suit; the person threatening or filing the lawsuit just seeks to punish or silence a critic or potential critic through a frivolous threat or filing by forcing the critic  to defend himself or herself in court.

An “Anti-SLAPP” statute is one which allows for the defendant to a SLAPP suit (the original speaker) to level the playing field.   It most often occurs by employing procedures which speed up the entire lawsuit (and thus keep the original speaker from spending money and time in dismissing the frivolous suit) or even by allowing the original speaker to affirmatively obtain damages for his or her time and effort.  Yes, the court system does allow a court to impose sanctions on the filer of a frivolous lawsuit that go to the defendant, but the standard for the award of sanctions is often a high one (the test is often described as “the straight face test”, as in: “if you can make the legal argument with a straight face, you can’t have sanctions imposed against you”) and the sanctions don’t come until the end of the case.

Anti-SLAPP statutes are the result of a legislature’s judgment that free speech on matters of public concern is so important that we cannot allow the threat or filing of a lawsuit to stifle that speech and they provide more certainty that sanctions will be assessed in this type of case, the possibility that a higher sanction will be assessed, and the opportunity to determine whether the lawsuit is proper or frivolous earlier in the legal process, while also “tolling” the expensive pre-trial discovery process while the defendant’s motion to dismiss the SLAPP lawsuit is pending, as well as the possibility of direct appeal on a faster track as well.  Now, while newspapers are less often the victim of a SLAPP action than a private citizen, I’m sure you can see how newspapers have and will continue to benefit from Anti-SLAPP statutes.

28 states currently have Anti-SLAPP statutes.  As Anti-SLAPP is: (a) solely a state law creature at the present time, (b) only exists in certain states and (c) has not been accepted as a valid defense in federal court in all those states where it applies, it is often “luck of the draw”  as to whether an Anti-SLAPP statute will apply – there are clearly situations in which a defendant would have this tool at his or her disposal in state  court but not federal court in the same state, even where that state court is applying federal law (more background and basics can be found here).

This draft federal law would:

Create immunity from lawsuit for anyone who files a lawsuit, advocates before the legislature or attempts to influence public policy in any public way that is consistent with the First Amendment rights to petition to the government or otherwise engage in free speech. This specifically includes the following actions:

  • any written or oral statement or writing made or submitted before a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  • any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law;
  • any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
  • any other conduct in furtherance of the exercise of the constitutional right of petition, or the constitutional right of free speech in connection with a public issue or an issue of public interest

Provide the following rights in the event that the person is sued for engaging in these activities

  • The right to dismiss the lawsuit where:
    §  The defendant need only show that he or she engaged in protected First Amendment activity, at which point the SLAPP plaintiff has the burden of showing that his or her claim is legally sufficient and supported by facts fact that would support favorable judgment

    §  The court must hold a hearing on the motion to dismiss within 45 days of the filing of that motion and rule on the motion to dismiss within a further 30 days of the hearing

    §  There is a right to immediate appeal of an adverse decision to the motion to dismiss or even where the court does not rule within the time limits provided above

  • The right to move the case from state court to federal court (with the case moved back to the state court if it is determined that the original action is not a SLAPP lawsuit)
  • The right to have the pre-trial discovery process tolled until the SLAPP defendant’s motion to dismiss is denied, with discovery permitted only to the extent necessary to resolve the motion to dismiss and with the SLAPP plaintiff denied to right to amend his or her complaint to avoid the applicability of this law
  • The right to damages in the event that the Anti-SLAPP motion to dismiss is successful, including:§  Costs of defending the litigation, including attorney’s fees, which in and of itself includes the attorney’s fees required to collect (the SLAPP defendant can also ask for a court determination as to whether he or she has prevailed – and is entitled to costs – if the SLAPP plaintiff voluntarily withdraws the lawsuit after filing)

    §  Any additional sanctions the court determines proper to deter repeat conduct by this or any other similarly situated SLAPP plaintiffs

  • File a “SLAPPBACK” lawsuit that allows the original speaker/SLAPP defendant to recover:§  Actual and compensatory damages, including damages for emotional distress

    §  Treble damages in the event that a jury determines by a preponderance of the evidence that the original SLAPP plaintiff intentionally sought to restrict free speech

    §  The costs and fees of bringing this action

Contain two key exceptions that preclude its application where:

(a) is brought solely in the public interest to enforce a general public right that can only be redressed through private enforcement of this type and

(b)it is brought against a business of selling or leasing goods or services, including insurance, securities, or financial instruments where the original statement was made in a purely competitive business context.  Crucially, these exceptions do not apply (and, thus, the protections of the law do apply) in the nonprofit or journalism context,  with the latter defined as:

  • Any person engaged in the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public, or any person engaged in the dissemination of ideas or expression in any book, academic journal or documentary (if this definition seems familiar, its because it is taken from the Senate version of the federal shield law proposals, which contains the our preferred definition of a journalist);
  • Any claim for relief against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar similar promotion of any dramatic, literary, musical, political, or artistic work, including a motion picture or television program, or an article published in a newspaper or magazine of general circulation;

The Capitolbeat board voted to support this effort as a means of providing additional free speech protections for all Capitolbeat members, thereby leveling the playing field across the country.  We are one of several organizations and individuals that have become supporters of this effort. The “Federal Anti-SLAPP Project” is currently seeking additional supporters and beginning to seek Congressional sponsors with the hopes of formally beginning the  legislative process.

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