John Oliver recently dedicated his HBO show to why we need a federal anti-SLAPP law. Like most of his stuff, the episode was witty and engaging. It was also sloppy, thoughtless and poorly researched. From now on, I’ll wonder whether I can trust anything he says.
An anti-SLAPP motion is a powerful legal maneuver available to defendants against libel and defamation lawsuits. In the 27 states that have them, the filing of an anti-SLAPP motion brings everything to a halt until a judge — not a jury — decides various issues about a case. Does it involve a matter of public interest? Is there a chance the case would succeed at trial? If the judge rules for the defense, the case is thrown out and the plaintiff pays the defendant’s legal fees.
Liberals and conservatives alike like anti-SLAPP. Supporters say they protect activists, whistleblowers and average individuals from being bankrupted if they get sued by deep-pocketed corporations and wealthy individuals who use the courts to harass their victims. In his show Oliver described his experience being sued by a coal baron who wanted to chill criticism. HBO, Oliver said, spent $200,000 to defend him because the suit was filed in a state without anti-SLAPP.
It’s easy to see why someone like Oliver, targeted by a frivolous defamation claim designed to tie him up in court and waste his employer’s lucre, would yearn for a federal anti-SLAPP law. His must have been a frustrating experience.
There is, however, an inherent design flaw in anti-SLAPP: the United States Constitution. Under the equal protection clause, you can’t give rights to one class of defendant and not another. You can’t limit anti-SLAPP protections to impecunious individuals and small businesses; rich people and giant corporations have to get the same legal prerogatives.
Which is what has been happening. Billionaires and corporate conglomerates use anti-SLAPP to crush legitimate libel and defamation lawsuits filed by ordinary individuals and whistleblowers. Happens a lot. Why don’t you hear about these cases? Because media companies love, love, love anti-SLAPP.
In 2016 The National Enquirer published a cover story about fitness headlined: “Richard Simmons: He’s Now a Woman.” He wasn’t. “Secret Boob & Castration Surgery,” the tabloid screamed, “Yes, This Photo Shoot Is Real!” It wasn’t. The cover photo of “transwoman” Simmons was Photoshopped.
Thanks to anti-SLAPP, what should have been an open-and-shut defamation case turned a travesty of justice into a farce. While acknowledging that the paper lied about Simmons, Los Angeles judge said that letting Simmons’ case go forward was tantamount to saying that it is bad to be trans. Simmons was an innocent victim and the Enquirer knowingly lied. Yet the court ordered him to pay American Media, owner of the paper, $130,000 in legal fees. So much for anti-SLAPP as being a tool for the little guy! AMI brought in $310 million in revenues last year.
In 2018 MSNBC host Joy Reid [disclosure: I have appeared on Reid’s show] retweeted a photo of a Trump supporter yelling at a high school student at a Simi Valley, California city council meeting. Reid added the following text: “He showed up to rally to defend immigrants…She showed up too, in her MAGA hat, and screamed, ‘You are going to be the first deported’…’dirty Mexican!’ He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”
Hate is real. The story was not. The kid said that Roslyn La Liberte, the woman in the photo, was trying to keep things “civil.” She never said that stuff.
La Liberte’s son emailed to inform Reid of the truth. Reid nevertheless reposted the image, this time alongside a black-and-white image of pro-segregation protesters in Little Rock in 1957 with this caption: “It was inevitable that this image would be made. It’s also easy to look at old black and white photos and think: I can’t believe that person screaming at a child, with their face twisted in rage, is real. B[ut] everyone one of them were. History sometimes repeats. And it is full of rage.”
La Liberte was wronged. Rather than settle or plead guilty, MSNBC’s lawyers hit the working grandmother with an anti-SLAPP motion. Ignoring the fact that Reid’s posts easily qualify under as “reckless disregard for the truth” under the landmark libel case Sullivan v. New York Times (1964), the judge wallowed in pro-corporate sophistry: “the juxtaposition of the photographs does not ‘make clear that [La Liberte] is alleged to have engaged in specific racist conduct akin to that demonstrated during desegregation.’” La Liberte’s case was thrown out, denying her justice. Adding injury to insult, she has to pay MSNBC’s legal fees. MSNBC is owned by NBC Universal, a $203 billion company.
President Trump used anti-SLAPP against Stormy Daniels, the porn actor who sued him for calling her a liar. Trump is worth $3 billion. Daniels owes him $293,000 for his legal fees.
My readers are familiar with my case against the Los Angeles Times. No one disputes the fact that they lied about me, fired me as a favor to the LAPD (which owned them at the time) and tried to destroy my journalistic reputation in order to send a chilling message to journalists who criticize the police. My anti-SLAPP case is still working its way through the court system—and things currently look good—but there is already a $330,000 judgment against me. They want me to pay that money to two billionaires, Dr. Patrick Soon-Shiong and LA schools superintendent and former Times publisher Austin Beutner, with a combined net worth of $16 billion.
Bill Cosby has been using the anti-SLAPP statute against his rape victims.
Faced with these cases, anti-SLAPP apologists sometimes say that the law isn’t bad, that it is simply being abused. If a law is written in such a way that it can be routinely abused, it is bad by definition.
(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)
10 Comments.
I enjoy John Oliver’s program. At least that part of me that craves distraction from the real horrors I am facing (if anyone has a spare job lying around, I could really use it) enjoys it. But the old-school journalist in me keeps finding big problems with Oliver as a serious raiser of issues.
For instance: his recent piece on gun violence. As with all the other coverage, Oliver’s coverage did not discuss the frailty of the whole “epidemic” argument. If you want to really start a fight this Thanksgiving, mutter “Gun violence is not an epidemic” loudly in the half-second of silence after the “Amen.”
And as far as radical goes, Oliver’s recent multiple pieces on Trump and Brexit show that he does a lot of treading in the same footprints as the other media outlets.
Trump will beat the impeachment. Why? Because a bunch of previous presidents engaged in behaviors that, while barely covered by the patina of “law”, were still criminal (or ought to have been). From the 1980s’ guns for hostages to fellating Wall Street in 2008-09 after they wiped out the economy, all of these future coin-fronts we call the presidents have scandal-ridden. But none of them get the same level of disgusted dismissal that Trump gets. Trump lies? So did Reagan, Clinton, all of them. Did you know Iraq was NOT involved in 9/11? You might want to jump in your TARDIS and let Dubya know so he can tell Pres. Cheney and avoid two decades of needless warfare. Trump will stay in office at least until 2017 because the liberal side of the media looks down at its shoes when a democrat’s in office and the Republicans do that hand-on-the-back-of-the-neck-look-around-at-nothing-in-particular thing when one of their guys is president.
Brexit? Here’s my prediction. Maybe tomorrow or in a few months, after another delay or two, another vote will be held. “Resolved: a vote to temporarily delay implementing Brexit until the issue can be studied in more detail.” That will get passed by about a 55% yes vote, and it will sit there, like a log of canned cranberry sauce, for as long as can be gotten away with. But that won’t sell a lot of click-ads or TV commercials, so everyone stares at everyone about how much of a “crisis” Brexit is. Sheesh.
“Trump will stay in office at least until 2017 because” …
Sorry, the cat was walking across the keyboard. Should be “at least 2021”
John Oliver is a moron.
I saw Oliver asking Edward Snowden if he felt stupid for doing something that has had no effect other than leaving him living in exile.
Obviously John Oliver has no concept of value other than dollars and, for him, truth is worthless.
No wonder he thinks anti-SLAPP suits are wonderful.
Don’t trust him.
The bubble Oliver lives in is a waste of space.
And while fighting to prevent anti-SLAPP laws from being extended to the federal domain,it might not be a bad idea to see to it that the «equal protection clause» –
– is modified to distinguish between the protections available to natural persons and those – which should be a much smaller category – available to juridical persons like corporations. That the corporate personhood and the rights that accompany it should be based on a 130 year-old obiter dictum is absurd. Given the longevity of the corporation and its financial power compared with that of natural persons, it is clear that a balance of power between the two can only be established by distinguishing distinct categories of rights which apply to them respectively….
I can’t but wonder if any of the natural persons running to be the Democratic Party’s candidate in next years US presidential elections have commented on this matter….
Henri
PS : I’m fully aware that such a clarification of the rights (ostensibly) guaranteed by the 14th Amendment to the US Constitution would not eliiminate the advantages that the super-rich enjoy in cases like the above over the rest of us, but it would force them to spend their «own» money, rather than that of the corporations they control….
if any of the natural persons running to be
Oh no, don’t give them any ideas! Or we will literally have Pepsi running against Coke sometimes soon:
Be woke – vote Coke
Pepsi has what voters crave – it’s got electrolytes!
Andreas, are you familiar with Frederik Pohl and Cyril Kornbluth’s The Space Merchants from 1952 (I have a tattered copy of the paperback in my library) ? If not, give it a read….
Henri
Merci.
Hadn’t read it before – remarkable book indeed.
The authors brilliantly exaggerate any and all of the cracks that were showing in the system back in their day (almost 70 years ago now) and often the result resonates.
Just as interesting, there are several boxes that even they just couldn’t think themselves out of – even though change just around the corner:
– While we will have interplanetary spaceflight, computers will remain building-sized,
– While advertising will be the main driver of power (!) executives are still loyal to companies and stay at the same company for decades.
– People don’t recognize how much they lost to the point of tragicomedy (breathable air outside, non-muscle driven cars…)… and there is very restricted access to those few remaining goodies: top execs all have 2 bedroom apartments; Still, I think they underestimated the kind of wealth inequality that was coming their way…
«Still, I think they underestimated the kind of wealth inequality that was coming their way…» On the other hand, the «lower classes» did get to rent half a stair on a stairway (if they qualified), so presumably few were what we should call «homeless»…. 😉
Henri
“In the 27 states that have them, the filing of an anti-SLAPP motion brings everything to a halt until a judge — not a jury — decides various issues about a case.”
The validity of an anti-SLAPP suit has to be determined by a judge before it can proceed.
So it has to be judged by a judge before being heard by a jury.
So it has to be pre-judged, that is, subjected to the prejudice of a judge.
My experiences as a prospective jury member included interrogation (voir dire) about my ability to decide on the merits of a case without prejudice.
Who then judges the judge’s prejudice (without the judge being subject to voir dire) in any particular case that a judge will pre-judge?
One reason for a jury (and appeals to higher courts) is that the decision of a particular judge must be considered to be possibly subject to prejudice, that a jury will possibly have an opinion that is CONTRARY to the prejudice of a particular judge.
Without recognition of that reason, why have juries at all?
The absurd results of anti-SLAPP suits demonstrates the need for jury nullification of these laws.
Juries have the ability to find for victims of laws that are in themselves crimes against the People.
Juries are not informed of their ability to nullify laws and explicit use of jury nullification is not allowed, so reasons to find for the victim of an unjust law must find reasons other than an unjust finding, such as finding evidence presented by the prosecution to be lacking in credibility.
I recommend reading the book “Jury Nullification— the Evolution of a Doctrine” by Clay S. Conrad to learn about rights that the People have but are prohibited from learning about in jury instructions.
“Under the equal protection clause, you can’t give rights to one class of defendant and not another.”
Constitutional rights are moot where money tips the scales of justice.
There is no functioning rule of law when one class of defendants easily buys more law than would bankrupt another.
Politicians and their laws now go to the highest bidder.
Due process should not be tantamount to auctions.