Critics Being Silenced by Strategic Lawsuits

By Kevin M. Goldberg

Donald Trump’s threat against The New York Times raises another legal issue that is being underplayed, even by top legal writers: It is another in a long line of “SLAPP” actions threatened or filed by Trump and his associates.

SLAPP is an acronym for “Strategic Lawsuit Against Public Participation” but, in reality, it is a suit or threat used to silence and harass critics by forcing them to spend money to defend a baseless lawsuit – something that is intended to intimidate, not win.

Someone faced with a SLAPP action generally ends up agreeing to retract their statements, apologize, or refrain from further comment on the matter in order to stay out of court. They are generally couched in, but aren’t limited to defamation lawsuits. SLAPPs can be found in business interference tort suits, civil rights suits, antitrust suits, copyright or trademark Infringement suits and, yes, invasion of privacy suits stemming from the release of newsworthy (but embarrassing) information.

The New York Times certainly knew it could publish Trump’s tax documents without punishment. Trump probably did too – and that’s why he hasn’t actually filed a lawsuit (yet).  But that hasn’t stopped him in similar situations in the past, as demonstrated in these articles by Paul Farhi of the Washington Post and Mike Masnick of TechDirt. And these suits, frivolous or not, take their financial and emotional toll on the defendants, even if they ultimately win. Especially when those defendants aren’t The New York Times.

We need to stop talking about whether the Times can publish without fear. It can. But a smaller newspaper or a local radio station – or certainly an individual like you or I – could not, even with the overwhelming support of the law on our side. Ninety-nine percent of all other potential publishers of those tax forms would have been sued.

The good that we can bring from this is the possibility of a federal “Anti-SLAPP” law. Anti-SLAPP laws are, as you might guess, the answer to SLAPP suits. They exist in almost 30 states and the District of Columbia. Some provide a mechanism for getting a SLAPP suit dismissed more quickly; the best will also ensure that the victorious defendant will receive his or her attorney’s fees from the person who sued them. They are a vital protection for free speech and need to be ubiquitous in state and federal courts.

Full disclosure: In addition to being the Chairman of NPF’s Board of Directors, I am also a member of the Board of Directors of the Public Participation Project, a nonprofit dedicated to “educating the public regarding SLAPPs and the consequences of these types of destructive lawsuits.”  We have also actively sought the passage of a federal Anti-SLAPP law for the better part of the past decade (a version of that law has been introduced in the U.S. House of Representatives as HR 2304, the “Speak Free Act of 2015”).

That’s the real discussion we need to have about the legality of publishing the Trump tax returns: Why, if he really wanted to make a point even in the face of overwhelming legal precedent indicating he’d clearly lose, Donald Trump could still force the New York Times, its editors and its reporters to spend countless hours and likely thousands of dollars, defending themselves in court for NOT breaking the law simply because he has the money to do so.

Kevin M. Goldberg, an attorney at Fletcher, Heald and Hildreth LLC, is chairman of the National Press Foundation.

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