SLAPP happy: The battle to protect press freedom and 1st Amendment rights

The Framers of the Constitution believed that freedom of the press is essential to democracy. The Virginia Declaration of Rights (1776) provided the foundation to the First Amendment (1791). It states - "That the Freedom of the Press is one of the great Bulwarks of Liberty, and can never be restrained but by a despotic Government." 

Today, the assault on freedom of the press is coming from multiple directions. The Trump administration, for example, recently barred the Associated Press (AP) from access to White House press briefings for continuing to call the Gulf of Mexico by its historical name instead of the Gulf of America.

Self-censorship is on the rise. Strategic Lawsuits Against Public Participation (SLAPP) are being used to silence targets through meritless litigation. Many journalists, watchdog organizations, and ordinary citizens have been the victims of meritless defamation or similar claims. A 2020 survey cited in the Northwestern Journal of Human Rights shockingly reported that 73% of investigative journalists have been threatened with legal action because of articles they wrote. 

Public officials and public figures use SLAPP litigation to thwart investigations, limit public debate, and retaliate against those with whom they disagree. The litigation or threat of litigation is intended to silence critics by subjecting them to costly legal maneuvers of the type that Charles Dickens' wrote about in the novel Bleak House. While journalists and media organizations are the most common victims, ordinary citizens also are at risk.

In 2020, the Uniform Law Commission passed the Uniform Public Expression Protection Act (UPEPA) intended to be a model for anti-SLAPP law. It provides a procedural framework to provide for expedited dismissal upon showing the case lacks merit, a stay on the proceedings while the court considers dismissal, the right to an immediate appeal should the motion be denied, and the recoupment of costs and attorney fees.

Many states, including California, have enacted anti-SLAPP statutes to provide defendants with an opportunity - through a special motion to dismiss - to secure an early and expeditious resolution of civil claims that interfere with the exercise of the First Amendment.

A case pending in the Supreme Court may decide whether anti-SLAPP statutes survive the assault (Steve Wynn v. Associated Press and Regina Garcia Cano (Docket 24A508)). The AP has until March 6 to respond to Wynn's petition for certiorari.

Steve Wynn is a prominent public figure in Nevada gaming and MAGA politics. A reporter, Regina Garcia Cano, wrote an article for the AP based on sexual assault complaints to the police about Wynn. As a result of the article, Wynn filed a defamation complaint and the defendants responded by filing a special motion to dismiss the complaint under the Nevada anti-SLAPP statute. The motion was granted by the trial court. 

The Nevada Supreme Court affirmed the special motion to dismiss (Steve Wynn v. Associated Press and Regina Garcia Cano, 555 P.3d 272 (2024)). Although the sexual assault complaints turned out to be false, the AP published the article in good faith to inform their readers regarding an issue of clear public interest. The Court determined the article was within the scope of the anti-SLAPP statute and the AP met its burden, by a preponderance of the evidence, that the article was in furtherance of free speech.

It also determined Wynn did not establish a probability of prevailing on the merits. He failed to meet the clear and convincing evidence standard applicable to his public figure defamation claim. The Court reasoned that "when a plaintiff must demonstrate a probability of success pursuant to (Nevada law) NRS 41.660 . . . the plaintiff must meet the same burden of proof that a plaintiff has been required to meet pursuant to California's [anti-SLAPP] law." California requires the plaintiff to provide evidence that would be sufficient for a jury, by clear and convincing evidence, to reasonably infer the existence of actual malice.

In the petition for certiorari, Wynn asks the Supreme Court to overrule the actual malice standard applicable to public officials (New York Times v. Sullivan) and those involving public figures (Curtis Publishing Co. v. Butts).

In 2022, the Court denied certiorari in Berisha v. Lawson, which presented a similar opportunity to review. But Wynn advances a legal argument not considered in Berisha. Namely, whether the Seventh Amendment's right to a civil jury trial should be incorporated into the Fourteenth Amendment and, if the answer is yes, whether the application of the clear-and-convincing actual-malice standard at an early stage of litigation violates the Seventh Amendment.    

The Supreme Court previously has ruled that the Seventh Amendment is not incorporated into the Fourteenth Amendment and applied to the states through its due process clause. The history of the Seventh Amendment illustrates that it was intended to operate as a check on the power of federal judges who serve for life. The Framers believed this was more of a potential concern for "ordered liberty" than state judges who are elected or appointed for a certain term.

In contrast, states typically recognize the right to a jury trial, although the state constitutional and statutory details vary. The Minnesota Supreme Court has held, however, that its anti-SLAPP law violates a plaintiff's right to a jury trial (Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623 (Minn. 2017)). But recognizing a federal right based on the Fourteenth Amendment would require reconciling differing state interests and practices with respect to Anti-SLAPP statutes.

Whether the evidence in the record is sufficient to support the finding of actual malice at the pretrial stage is a question of law, not fact. The question of actual malice goes to the jury only after there is sufficient evidence for the jury to reasonably conclude the publication was made with actual malice. If the plaintiff fails to provide such evidence, the claim fails without the need for a jury to engage in fact-finding. 

The Wynn case bears watching as it moves forward. Although state anti-SLAPP laws are commonly viewed as protecting the press and media, the reality is that they broadly protect core constitutional rights enshrined in the First Amendment. They are an important antidote to the rising tide of SLAPP lawsuits by the powerful to silence and intimidate critics.