PA may finally crack down on lawsuits aimed at curbing free speech

The Old City Civic Association was sued out of existence for opposing a building project. A Central PA blogger was taken to court for complaining about a local puppy mill. Angelique Smith and other parents of students at Philadelphia’s Agora Cyber Charter spent years fending off a lawsuit after they asked questions about their school’s iffy finances.

Smith would eventually lose her home due to her legal costs.

"Seven and a half years, we struggled to preserve our First Amendment rights," Angelique Smith told the Inquirer, in 2016. "This whole thing was meant to intimidate us, harass us and silence us."

At first glance, these stories strain credulity; after all, how could someone be sued just for asking questions? But in legal circles, these cases are so common they have earned their own anagram: SLAPP suits, or “strategic lawsuits against public participation” – legal actions aimed at bogging down an opponent in court.

But a new bill from state Sen. Larry Farnese would try to curb these types of lawsuits, allowing Pennsylvania to join some 27 other states with similar provisions.

“These are usually frivolous lawsuits brought against a person or organization who has spoken critically of another person or organization with deeper pockets,” said Farnese chief of staff Sally Keaveney. “They can just be crippling for folks to deal with.”

Typically aimed at public critics – say, a hostile blogger, concerned parents or a troublesome civic group – SLAPP suits may not have anything to do with the issue at hand and are rarely about winning. The goal is to simply drain the target’s time and resources by landing them in court, sometimes for years.

The Farnese bill would radically condense the timeline for these sorts of cases, ideally down to just a few months. Under the new system, defendants could invoke an anti-SLAPP motion that would require the plaintiff to demonstrate that their suit was not aimed at chilling protected speech. A judge would then make a determination.

“The point is to stop the case where it is rather than going through an entire discovery motion,” Keaveney said. “That’s where a lot of these cases get hung up before they even go to trial discovery, and appeals can last years.”

Both parties would have associated legal costs guaranteed. For defendants, the minimum guarantee would be $10,000. Similar protections are already extended to suits concerning environmental law.

The new legislation first won consideration in the state Senate in an update on 2015 legislation that passed the Senate but died in the House. Keaveney said the Pennsylvania Bar Association had some technical concerns about that version that have since been rectified.

The new bill lowers a plaintiff’s evidentiary standard to prima facie evidence after tougher standards caused a Washington state law to be struck down. The scope of liability was also reduced to only parties with direct involvement in a case, instead of anyone with indirect involvement. Finally, the new bill drops a requirement that protected speech also meet a “good faith” standard.

The Pennsylvania Chamber of Business and Industry has opposed similar bills in the past and Sam Denisco, its vice president of government affairs, said his organization also had "concerns" about the reintroduced legislation.

"We are worried that someone – an individual or business – will use the guise of a First Amendment protection when in fact they’re blatantly slandering or distorting the facts in a situation that's really about stopping economic growth or development," he said.

Denisco argued that existing court procedures were already sufficient while acknowledging that certain SLAPP cases had dragged on for years.

"I'm not sure we fully understand the need for it," he added. "There’s already a common-law remedy available," he said. "I get it, it could be a lengthy process. But that’s our court system."