State, federal legislators should smack down suits that threaten free speech

For just as long as Ameri- cans have enjoyed the free and unfettered exercise of free speech as guaranteed in the First Amendment of our Constitution, there have been those who have tried vigilantly to quash that fundamental right in order to protect a narrow special interest.

In recent decades, the U.S. court system has been vigilant in working to reduce that “chilling effect” on the free flow and exchange of ideas that threaten millions of activists, artists, journalists and everyday Americans.

One such recent and important victory for free expression came earlier this month from a case emanating from nearby Chagrin Falls. On July 8, a divided Ohio Supreme Court refused to accept Ohio coal-mining magnate Bob Murray’s appeal of a lower court ruling dismissing a defamation lawsuit he filed against a small weekly newspaper, the Chagrin Valley Times, in suburban Cleveland. That decision should stand as a foundation for broader protections against frivolous but costly lawsuits that gag free speech in our state and nation.

OHIO LANDMARK RULING

In the Chagrin case, the state’s high court voted 4-3 to allow an appellate court ruling against Murray stand. Murray contested a ruling from the 8th District Court of Appeals that he was not defamed by the Chagrin Valley Times when it published a story, column and editorial cartoon that the leader of Ohio’s largest coal-mining company found unflattering, disparaging and false.

The court found that Murray is a public figure and had not demonstrated actual malice – a knowing and reckless disregard of the truth – required of a public figure to prevail. Nonetheless, the lawsuit itself endured as a partial victory for Murray in that it effectively constricted free expression about him, his leadership and his detractors for years. For example, the small newspaper removed from its website all mention of Murray. The intensely high cost in time, money and resources left the small newspaper virtually no other recourse.

As such, the lawsuit stands as a classic case of SLAPP – Strategic Lawsuit Against Public Participation. Armed with this impressive court victory, the Ohio Newspaper Association is now taking the lead to enact anti-SLAPP statutes to the Ohio Revised Code.

Anti-SLAPP laws provide targets of such lawsuits with protections that reduce the ability of the plaintiff to harass and impose punishing costs on those being sued. Curiously, Ohio – whose courts have been much more supportive of free-speech rights than has been its Legislature – is one of 22 states in the Union without any anti-SLAPP protections.

That’s why it is incumbent upon some public-spirited state legislator – perhaps one from the Mahoning Valley delegation – to take up the challenge issued by the 8th District Court of Appeals. In its ruling against Murray last winter, it took the highly unusual stand of urging such legislative action.

To wit, the majority wrote: “This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech. ... Given Ohio’s particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.”

In addition to action on the state level, advocates of free speech also should encourage their lawmakers in Congress to rally around the Speak Free Act, introduced in the U.S. House in May by a bipartisan mix of First Amendment defenders. The bill would fill current gaps in state laws by providing a uniform defense against SLAPP suits nationwide.

Those cynics of the mass media in this nation should be advised that such SLAPP protections also would benefit a wide swath of individuals and groups who have been muzzled over the years by such baseless litigation. Among them are writers of letters to the editor, circulators of petitions, property owners who post politically charged signs in their yards, citizen watchdogs who dare to speak openly at public meetings and countless others.

As such, smacking down such insidious SLAPP suits should become a top priority of lawmakers in Columbus and Washington alike this fall.