Authored by Carley Bomrad, 3L at The Ohio State University Moritz College of Law
Ohio has recently passed legislation that will protect activists against SLAPP suits - so what are these suits and why is this legislation so important?
What is a SLAPP suit?
SLAPP stands for Strategic Lawsuits Against Public Participation. These are lawsuits aimed at silencing criticism and draining the resources of those who speak up against certain organizations.[1] A company may bring a lawsuit against an activist that they know won’t be successful, but the point is to scare the activists away or make it so expensive for them that they stop their activities. [2] In some instances, parties may be forced to settle claims that have absolutely no legal support because they cannot continue to afford the lawsuit. SLAPP suits are often in the form of defamation claims, meaning the arguing party is claiming that the activist/activist organization is spreading harmful false claims.[3]
SLAPP suits have been used against activists, often environmentalists, for years. A stark example of SLAPP suit is coal baron Bob Murray’s attack (one of many SLAPP suits initiated by him) on HBO and John Oliver for defamation, intentional infliction of emotional distress, and invasion of privacy, in response to an episode where Oliver calls him a “geriatric Dr. Evil” and has a man in a squirrel suit tell him to “Eat Shit.”
It wasn’t until after $200,000 was spent defending John Oliver and HBO that the case was dismissed. While a large corporation like HBO has the resources to cover the expense of this litigation, it’s easy to see how devastating SLAPP suits can be—even when meritless. John Oliver talks about SLAPP suits and this experience in the episode below:
Another SLAPP suit was devastating to an environmental group’s (Protect Our Mountain Environment, or “POME”) efforts to stop real estate developers in Colorado.[4] The developers asked for $40 million in damages from POME for abuse of process and civil conspiracy. Again, although the courts eventually sided with POME, the litigation was so costly and time-consuming that they had to cease their efforts. These are only some of the many examples of activists being forced into silence due to SLAPP suits.
What is Ohio’s anti-SLAPP statute and why is it important?
SB 237, or the Uniform Public Expression Protection Act (UPEPA), is Ohio’s anti-SLAPP law. It allows defendants in SLAPP suits to file expedited motions to dismiss, put a pause on discovery or other pending motions, appeal immediately after an unfavorable ruling rather than waiting, and request for the opposing side to pay the defendant’s attorney’s fees.
The law creates an expedited process that can save defendants from filing numerous motions, turning over discovery, and potentially waiting months for an appeal.
The law also protects Ohioans’ freedom of speech by creating substantive immunity from suit, meaning it confers a right onto Ohioans to not be subject to SLAPP suits and to freely exercise their First Amendment rights.
UPEPA protects those lawfully exercising their First Amendment rights. It does not protect against claims of threats of imminent injury or actual injury.
Essentially, UPEPA protects Ohioans from suits intended to silence activism. The protections extend to communications made during government proceedings, communications regarding an issue under governmental consideration or review, and matters of public concern.[5]
This law is so important because it protects protestors and activists from the “exercise your first amendment rights at your own peril” threat that SLAPP suits carry.[6] With UPEPA and other anti-SLAPP laws, defendants can file an anti-SLAPP motion to place a hold on all discovery, which protects the time, money, and privacy of your organization.
This law provides greater protection than a simple motion to dismiss. If a party can show that UPEPA applies, then the party that initiated the suit has the burden to prove it doesn’t apply or that the speech was not protected for another reason. Another important element of UPEPA is that if the defendant is denied its protection, they can immediately appeal, which protects them from further draining of time and money. UPEPA also allows for the recovery of attorney’s fees, ensuring that parties who have to defend against these claims are not left at a loss.
Things to keep in mind
Beware, if you are sued in federal court, it’s unclear if this state law will protect you. There is a circuit split when it comes to deciding whether state anti-SLAPP suits apply in federal court. Under what is called the Erie Doctrine, federal courts apply substantive state law but federal procedural law in federal court proceedings.[7] Therefore, if anti-SLAPP laws are considered procedural in nature, then the protection will not be offered in federal court. If the laws are considered substantive (meaning they impact substantive rights like free speech), then federal courts apply the state law protections. Courts have ruled different ways when determining if anti-SLAPP laws are procedural or substantive.
However, Ohio’s UPEPA explicitly states that the rights protected are both substantive and procedural. If a court agrees with that statement, then the protections granted by UPEPA reach into federal court as well. But it is important to be aware that if a court rules a different way, stating the rights are strictly procedural, then these anti-SLAPP rights will not extend to federal court. Regardless, the rights are solidified in Ohio state courts, as well as in 34 other states, and since the text of UPEPA classifies it as a substantive right, lawmakers have done what they can to convince a court that the rights should extend to federal court.
Speech that is true or is stated merely as opinion is always protected speech under the First Amendment. Further, private persons have the greatest protections and can more easily bring SLAPP suits than public persons (such as elected officials) or large corporations, so be cautious when naming individuals. Make sure to speak deliberately with this in mind when engaging in activism.
We are celebrating that Ohio has become the 35th state to enact an anti-SLAPP law! Groups should stay aware that it is hard to eliminate the risks of SLAPP suits entirely but know that if a company or person is trying to threaten you with a meritless lawsuit in an effort to stop your exercise of your First Amendment rights, you now have legislation in place to support you.
[1] Speak Smart: Protecting Your Voice in a Legally Risky Environment, Fair Shake.
[2] SLAPPed: A Tool for Activists, ACLU (2014).
[3] ACLU (2014).
[4] ACLU (2014).
[5] Brooke White, The SLAPP Happy State: Now Is the Time for Ohio to Pass Anti-SLAPP Legislation, 74 Case
W. Rsrv. L. Rev. 559 (2023)
[6] ACLU (2014).
[7] White (2023).
