Investigative journalism plays a crucial role in exposing corruption. Journalistic exposés often prompt not only prosecutions, resignations, and other forms of individual accountability, but can also serve as the catalyst for broader legal and institutional reforms. Yet investigative journalism—especially into the misdeeds of the wealthy and powerful—is risky. Journalists can sometimes face physical threats, and occasionally deadly violence. Even when their safety is not in jeopardy, journalists investigating corruption encounter legal trouble. In some jurisdictions, governments take legal action against reporters, seeking to impose large fines or even incarceration. In other cases, the targets of investigative reporting seek to derail such reporting through defamation lawsuits, even when the defamation claims lack legal merit. These sorts of suits are commonly referred to as SLAPPs—Strategic Lawsuits Against Public Participation. In many cases, the costs of defending against even a meritless defamation suit can drain the journalist or news organization’s funds, and such suits can also take a psychological toll on their targets. The litigious and deep-pocketed figures who bring SLAPPs seek to take advantage of these facts in order to intimidate journalists into silence.
Not all SLAPPs target journalists who expose corruption—the issue is much broader. But SLAPPs have frequently been used against journalists who write about corruption, and the anticorruption community therefore has a clear interest in legal reforms that would counter the threat that SLAPPs pose . So what can be done about this problem? Broadly speaking, there two primary legislative responses to the prevalence of SLAPPS: “Anti-SLAPP” laws and “SLAPPback” laws:
- Anti-SLAPP laws make it easier for defendants to swiftly dispose of baseless claims at an early stage of the litigation, thus keeping the costs of defending against such claims low. Anti-SLAPP laws achieve this by allowing defendants who can demonstrate that the claim against them relates to their speech on matter of public concern to file a motion to dismiss the suit; the plaintiff must then demonstrate that the suit has merit—prior to lengthy and expensive discovery proceedings. If the plaintiff cannot do so to the court’s satisfaction, the suit is dismissed. These laws may also require the plaintiff to pay the defendant’s legal fees if the suit is dismissed at this preliminary stage.
- SLAPPback laws go further, allowing defendants who successfully defend themselves against a meritless defamation suit to recover damages (not just attorney’s fees) from the party who brought the suit, if the original defendant can show that the suit was brought for the purpose of harassment, intimidation, or malicious inhibition of speech rights. (For examples of such laws in U.S. states, see here and here.) Though these laws could help deter SLAPPs, it seems they are seldom used––perhaps because of the expense of bringing a lawsuit, and perhaps because the target of the SLAPP might just wish to get back to “business as usual” rather than prolonging the legal conflict.
Anticorruption advocacy groups should push for robust Anti-SLAPP protections, including both Anti-SLAPPs and SLAPPbacks. (Getting SLAPPback laws on the books would provide even more robust protection, but the most important priority is getting adequate Anti-SLAPP laws on the books.) Importantly, just because a law is labeled an “Anti-SLAPP law” doesn’t mean that it’s sufficient. Not all Anti-SLAPP laws are created equal. In the United States, for instance, some Anti-SLAPP laws protect only very narrow classes of defendants, excluding many of the investigative journalists and media outlets reporting on corruption. To be effective, Anti-SLAPP laws should offer robust protections to any person who speaks on a matter of public concern, broadly understood. (Of course, when drafting Anti-SLAPP legislation, it is important to balance potential defendants’ interest in avoiding harassment suits against potential plaintiffs’ interest in bringing legitimate defamation suits, but appropriately drafted laws can strike the right balance.)
Anticipating issues like forum shopping is also essential to bolstering Anti-SLAPP legislation. In the United States, plaintiffs can typically choose where to file a lawsuit, and SLAPP plaintiffs may deliberately try to file in states without an Anti-SLAPP law. Additionally, there is currently no Anti-SLAPP law in the U.S. governing suits in federal court, and federal courts often do not apply state anti-SLAPP protections when hearing suits. Federal Anti-SLAPP legislation has been introduced in the U.S. Congress multiple times, but hasn’t yet been enacted. Anticorruption advocates in the United States––and those facing similar difficulties abroad––should throw their support behind the passage of such laws, as well as establishing state-level Anti-SLAPPs in all relevant jurisdictions. Without those protections, litigants can avoid federal protections in state courts, and vice versa.
SLAPPs are alarmingly common, but so far, only a few jurisdictions have Anti-SLAPP protections of any kind. This must change. The brave journalists who expose corruption and other forms of wrongdoing deserve protection against those who seek to bankrupt them by filing abusive and meritless lawsuits.
A related question, in a developing country where courts are badly dysfunctional and have a reputation for being corrupt themselves, would you rather lean towards watering down defamation laws in order to protect free speech? I’m asking this question in part because in such situations, journalists too are not known for their integrity, and often make wild accusations or bring up agenda driven corruption allegations for reasons other than genuinely wanting to fight corruption. Such journalism can also be fairly disruptive, but then defamation laws also become a tool in the hands of the ruling elite to evade any accountability and undermine journalism. So how should activists in corruption prone countries strike the right type of balance between wanting a legal framework that also holds journalists accountable for defamation but at the same time protects free speech?
This is a good point. Particularly in an age where “fake news” and ad hominem character assassinations run rampant, there have certainly been instances in which malicious conspiracy theories have been masked as investigative journalism. However, could there be a chance that such a large quantity of erroneous or defamatory journalism results in over-saturation, and this in turn disincentives over-litigation? When there are simply too many defamatory articles to keep track of, as has been the case in numerous countries as a result of social media platforms such as Facebook and Whatsapp, perhaps people and entities will be forced to self-select and only litigate the more serious and legitimate claims.
That’s an interesting thought. I’m not sure but I suspect that such a self-selection is highly unlikely at least in societies where the courts are not credible. The selection will typically end up being based on what types of journalistic stories bother the ruling elite more and not so much on the merits of the defamation claims.
May be there will be some merit-based filtering in countries with relatively better courts but can’t say for sure. For example, take the wikileaks case where the foreign policy and national security elites are having their way, albeit in the name of espionage charges rather than defamation. It bothered them so much that they clearly chose to put a lot of effort into going after Assange. Of course wikileaks is not your usual journalist outlet and strictly speaking, they did put classified stuff on the web, so it’s a bit nuanced. But we do know fully well that the effort to go after him isn’t so much about espionage but about making an example out of someone who has exposed uncomfortable truths which the foreign policy establishments prefered did not come out and get debated. The eagerness to target him is completely unmatched by any willingness to become more honest and truthful about how foreign policy and national security affairs are conducted, or to also punish those who for instance lied about weapons of mass destruction to start a war in Iraq.
While reading about your suggestion for implementing federal Anti-SLAPP legislation, I started to think about the interaction of such laws with federal pleading standards. Many have characterized the post-Twiqbal shift in pleading standards as raising too high the bar for sustaining an early motion to dismiss, because among other things this standard makes it difficult for plaintiffs in the pre-discovery period to collect sufficient evidence in suits challenging insulated government activities. Yet I imagine that, from an anti-SLAPP perspective, this high standard would be favorable.
Conversely, a lower pleading standard would assist plaintiffs (maybe plaintiffs seeking to expose government corruption or malpractice!) in surviving 12(b)(6) motions, but at the same time it would make it more difficult for SLAPP defendants to dispose of frivolous lawsuits. All this is to say that I wonder how advocates of federal Anti-SLAPP legislation, particularly those in the anticorruption community, would address these concerns.