When free speech gets expensive
As our nation's birthday approaches, something to consider: The Constitution protects free speech but exercising that right can be costly.
Freedom of speech is one of our Constitution's greatest protections. But in this country, guns and the government aren't what suppress speech.
Here it's money and corporations that keep people quiet.
It's called a SLAPP suit: strategic lawsuit against public participation. A company doesn't file a SLAPP suit because it feels it's been legally wronged. The suit is filed because executives know that defamation lawsuits cost tens of thousands of dollars to defend, and the vast majority of people will stop using the "offending speech" rather than face such an expense.
Say you create a website called CitizensAgainstCompanyX.com, and start collecting and posting negative opinions about Company X from other like-minded people. Protected speech? Sure. You certainly have the right to an opinion. But Company X has rights, too -- including the right to file a defamation lawsuit against you.
This is Company X's corporate strategy: Control negative things said on the Internet about it by filing lawsuits against anyone who posts them. It doesn't care if the opinion was correct or the speech was protected -- or even that it could never hope to prevail in a suit. Company X knows that the vast majority of people will fold their tent rather than wage a costly war against a vastly richer opponent.
Company X has now done something that Uncle Sam can't: effectively take away your First Amendment right to free expression.
As you might imagine, this type of lawsuit is much more common in the age of the Internet. In pre-Internet days, if you told your circle of friends about a bad restaurant experience, it was no big deal because the restaurant never knew. But now you have the ability to share that experience in writing with hundreds of thousands of people -- even millions. Start tossing in a few choice words like "rip-off" or "food poisoning" and you might just invite a SLAPP suit.
To get a better handle on how these things work and what can be done to protect against them, I talked to my company’s First Amendment lawyer, Cristina Pierson. Check out that interview in the video below, then meet me on the other side.
Case in point
Here's an excerpt from a recent article in The New York Times:
After a towing company hauled Justin Kurtz's car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.
Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called "Kalamazoo Residents against T&J Towing." Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.
T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.
"I didn't do anything wrong," said Mr. Kurtz, who recently finished his junior year at Western Michigan University. "The only thing I posted is what happened to me."
Of course, cases like Kurtz's are relatively rare, especially when weighed against the sheer volume of complaint sites and other venues open to people on the Internet. So a SLAPP suit isn't something to actively worry about, nor is it something that should keep you from enjoying your First Amendment rights. In addition, 27 states already have anti-SLAPP laws, and there's a bill now before Congress, sponsored by Reps. Steve Cohen of Tennessee and Charlie Gonzalez of Texas, that would create a federal anti-SLAPP law.
The problem with the federal anti-SLAPP legislation is that it works by automatically reimbursing the person being sued for legal fees if the company doing the suing is found by the court to have filed a meritless SLAPP suit. And that should definitely limit these types of suits. But being reimbursed is small comfort if you don't have the money to defend yourself in the first place.
It’s a free country, which means any person or company is free to sue you at any time for any reason, real or manufactured. So there's no iron-clad defense against being hit with a SLAPP suit -- or any other kind of lawsuit. All you can do is keep yourself in a position to win any suit that does come your way.
How? Easy. Do what journalists have been doing every day since our Constitution was written. State the facts and let people form their own opinions.
It's perfectly OK for me to tell my readers or viewers that a certain company is selling a product that the FTC has found to be totally ineffective: Those are facts. But it's less OK for me to stand on camera in front of their office and call everyone who works there a bunch of crooks. Still defensible? Sure -- I'm entitled to my opinion. But relative to stating the facts, it's asking for trouble.
Bottom line? Don't ever be afraid to express your opinion, online or otherwise. I've been in the business of putting unscrupulous companies and individuals on television for 20 years -- and I pay my own legal bills.
Lawsuits are like car wrecks: No matter what you do, there's a chance you could be wiped out. But you don't stop driving. You minimize your risk by driving defensibly.
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