Diners nursing a grudge after a lackluster meal might want a lawyer on retainer before recounting their experience in a scathing Yelp review.
Consumer complaints over poor restaurant service, defective merchandise and rude employees can result in a costly court battle if the business fears a negative review will hurt its chances with future customers. Increasingly, companies are suing their critics for libel to strong-arm them into silence.
The First Amendment protects bad reviews when authors hew closely to the facts and steer clear of rumor and speculation. That’s fine with the plaintiffs, who don’t expect to win such spurious suits anyway. They take dissatisfied former customers to court — or threaten to do so in ominous cease-and-desist letters — in the hope that defendants will voluntarily delete critical online postings in exchange for immunity.
Those who refuse will probably prevail, but only after months or years of uncertainty and tens of thousands in attorney fees. It’s the ultimate Pyrrhic victory. Like colleges and government agencies launching investigations into free speech that can’t justify an expulsion or firing, the process is the punishment.
Such frivolous court filings are known as SLAPPs, or strategic lawsuits against public participation. Thirty-one states and the District of Columbia have enacted anti-SLAPP statutes that deter the nuisance lawsuits by fast-tracking their dismissal and in some cases, allowing defendants to recover legal costs from the plaintiff when a judge throws the case out.
North Carolina is among the 19 states without anti-SLAPP protection, but that could change if the General Assembly heeds a wise recommendation from the N.C. General Statutes Commission.
That obscure body tasked with proposing revisions to the state’s lawbooks decided an anti-SLAPP law would benefit our legal system. Rep. Ted Davis Jr., a New Hanover County Republican and a commission member, introduced the Uniform Public Expression Protection Act on May 23.
House Bill 1017 is North Carolina’s version of model legislation the nonprofit Uniform Law Commission drafted in 2020. It’s a hit with First Amendment advocates.
“When evaluated by our ratings of each state’s law, as described in the subsequent section, UPEPA contains provisions that are superior to almost every current state anti-SLAPP statute,” the Washington-based Institute for Free Speech says on its website, which assigns A-F letter grades to state and jurisdictional policy on SLAPP cases.
California’s anti-SLAPP law is the gold standard, earning an A-plus. Delaware and Nebraska have weak anti-SLAPP protections, resulting in a D-minus. With no relevant statutes on the subject, North Carolina and 18 other states receive an F.
HB 1017 sailed through the House Judiciary 1 Committee on Tuesday, as Colin Campbell of the N.C. Tribune first reported, advancing to its next assigned stop — the Rules Committee — before lawmakers can hold a full floor vote.
That’s good news, but the celebration may be short-lived. As Campbell reported in Wednesday’s N.C. Tribune e-newsletter, the state Administrative Office of the Courts registered its opposition to the bill.
“Creating a separate subset of rules for a certain type of cases creates challenges for a system that is based on uniformity,” AOC legislative liaison Joseph Kyzer told lawmakers during Tuesday’s committee hearing.
That’s a puzzling and likely disingenuous objection, as federal and state case law already introduce variables that only apply to certain types of lawsuits and offer a fast lane to dismissal. One wonders whether Mr. Kyzer rises each day to shake his fist at the qualified immunity doctrine.
Supporters include the North Carolina Press Association and the Duke University Law School First Amendment Clinic. In the interest of full disclosure, the Times’ publisher serves on the NCPA Board of Directors and our editor has been a client of the Duke legal clinic. These relationships aren’t the reason we endorse HB 1017, however. For free speech advocates, anti-SLAPP laws offer obvious benefits.
As head of the state’s judicial branch, Chief Justice Paul Newby oversees the Administrative Office of the Courts. He is popular and influential among legislative Republicans, which means his thumbs-down carries considerable weight. He’s also been a reliable defender of First Amendment rights. Lest he wish to tarnish that reputation, we urge Newby to reconsider his agency’s stance.
The ever-present threat of meritless lawsuits designed to intimidate people who speak out on matters of public concern makes free speech seem like a privilege for the wealthy and well-lawyered rather than a right all citizens enjoy. We can fix this by adopting House Bill 1017.