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.