This piece originally appeared in The Cleveland Plain Dealer on July 14, 2024.
Typically, the remedy for untruthful speech is counter-speech—correcting the record. However, some people would rather silence opponents.
This happens more often than you may realize. You might leave an accurate, negative Yelp review after a nauseating experience at a nearby restaurant. Perhaps you decide to voice your opinion about the employment practices of a prominent company. Maybe you take a local public official to task for a misguided new policy.
In all these examples, your speech is protected by the First Amendment. Yet, the restaurant owner, the company, or even the elected official may try to silence you with something called a “SLAPP,” which stands for “strategic lawsuit against public participation.”
This major threat to free speech allows deep-pocketed individuals or businesses to file frivolous lawsuits to remove speech they don’t like and punish the speaker. These plaintiffs usually claim that the speech constitutes defamation, suing speakers to force them to bear significant litigation costs. Unscrupulous, often sophisticated, plaintiffs can use SLAPPs to silence unwelcome speech protected by the First Amendment.
Strong anti-SLAPP laws afford defendants protections against such attacks in a wide range of states, from “blue” California to “red” Texas. Anti-SLAPP laws help speakers by disincentivizing frivolous, anti-speech suits. These laws short-cut the process, protecting free speech and helping to spare SLAPP targets much of the stress, cost, and time associated with fighting back.
Sadly, here in Ohio, you’ll have no such luck.
That certainly matters to me as a former Ohio judge, former Ohio Deputy Attorney General, and a current free-speech litigator. SLAPPs threaten our First Amendment rights, whether it’s commenting on a political issue or posting an online review. The mere threat of a SLAPP can “chill” free speech, intimidating potential speakers into silence.
Ohio’s lack of anti-SLAPP protection puts it at odds with a growing national trend. In fact, most Americans now live in jurisdictions with strong protections against SLAPPs. California and Texas may not agree on much, but they both do an admirable job of protecting their citizens from anti-speech lawsuits, scoring an “A+” and “A-,” respectively, on the recent Anti-SLAPP Report Card from the Institute for Free Speech. Meanwhile, Ohio is one of just 16 remaining states with no anti-SLAPP protections whatsoever, receiving an embarrassing “F” grade.
The wide range of states that have enacted strong anti-SLAPP laws demonstrates both the effectiveness and cross-ideological appeal of these laws. Closer to home, Indiana earns a solid “B+” grade, while Kentucky boasts an impressive “A+”. Our state’s oversight leaves Ohioans vulnerable to the abuse of the legal process
Fortunately, there’s hope on the horizon. State Senators Theresa Gavarone and Nathan Manning introduced SB237, the Uniform Public Expression Protection Act (UPEPA). This legislation passed the Senate 32-0 and a companion bill was just introduced in the House by State Representatives Brian Stewart (R) and Elliot Forhan (D), showcasing the bipartisan appeal of anti-SLAPP protections.
UPEPA contains critical provisions to deter SLAPPs and minimize litigation costs for defendants. It requires plaintiffs to demonstrate a legitimate case early in proceedings and allows defendants to appeal immediately if their anti-SLAPP motion is denied. UPEPA instructs judges to interpret speech protections broadly. Importantly, it also requires courts to award winning defendants court costs and attorney’s fees.
It’s time for Ohio to join the many states that protect speakers with UPEPA laws. Since 2022 alone, eight states have enacted or improved their laws based on the model law suggested by the Uniform Law Commission.
All Americans should be able to speak honestly without fear of retribution. UPEPA will help ensure that Ohioans can exercise their free speech rights with strong protections against wealthy individuals and powerful entities that would weaponize the legal system to silence them. Let’s hope the proposal is adopted by the House and is sent to Governor Mike DeWine soon.
