In new article, Ligon ’16 champions anti-SLAPP laws to protect local media from lawsuits
Ligon and First Amendment Clinic students testified before a NC legislative commission this spring to support a bill that would allow for early dismissal of frivolous libel lawsuits.
In her research and writing, First Amendment Clinic Supervising Attorney Nicole Ligon ’16 is a strong advocate for state laws that protect freedom of speech of individuals and of the press. This spring her efforts focused on North Carolina as she and clinic students testified before a legislative commission in support of an anti-SLAPP bill that could be introduced to the General Assembly next year.
A SLAPP (Strategic Lawsuit Against Public Participation) is a lawsuit filed expressly to discourage people from exercising their First Amendment rights by forcing them to incur the cost of legal defense. Typically, a SLAPP is filed by a relatively more powerful party seeking to stifle criticism by a relatively less powerful party, such as a developer filing libel or slander allegations against a private citizen who has criticized its development plans in a public forum such as social media.
In fact, the clinic has been providing ongoing legal representation since fall 2018 for a client of modest means who faced two such lawsuits in South Carolina after he made critical comments online about a wealthy businessman and his associate who wanted to rezone Hilton Head National Golf Course for development. The clinic won summary judgment in one of those cases last April and has stayed on as appellee counsel while the case is on appeal to the Fourth Circuit. The second case settled in April 2021, when the plaintiff filed a stipulation of dismissal with prejudice after the district court entered a favorable discovery ruling for the clinic’s client.
But SLAPPs can also be used to silence journalists and news media by saddling newspapers, TV, and radio stations with legal fees that could put smaller, more localized ones out of business, according to Ligon’s new article, “Protecting Local News Outlets From Fatal Legal Expenses,” 95 New York University Law Review Online 280-302 (2020). In the article, she urges states to safeguard the press through anti-SLAPP laws.
Local news media play a critical role in their communities by bringing to light issues that would not normally attract national notice, she says. For example, the Flint Journal, with a circulation of 50,000, began documenting complaints from residents shortly after the city of Flint, Michigan, changed its water source. It took eight more months before the much larger Detroit Free Press picked up the story and nearly a year before Flint’s lead-contaminated water became a national scandal.
And in 2019 Carolina Public Press, a nonprofit news organization that covers North Carolina with a small staff and network of freelancers, analyzed data on sexual assault cases and found that fewer than one in four suspects were convicted, in part because of loopholes and carve-outs in the state’s consent laws, Ligon writes. The investigation and subsequent public pressure led to reform legislation that passed unanimously in both houses of the General Assembly in October 2019.
Such in-depth journalism will suffer or disappear if small news outlets are bankrupted by powerful interests who seek to tie them up with costly litigation, Ligon argues.
“Local news outlets are more likely to pick up on and follow issues of serious consequence with regard to their communities’ health, welfare, and commission of justice,” she says. “By making it more difficult for local papers to exist, we are going to have a real dearth of coverage of localized issues, and that is particularly problematic when you have communities that are already underserved and really need somebody advocating for them.
“Because they serve such a critical role to underserved communities, as these communities are especially likely to turn to and trust local news sources, and because these outlets can act as powerful forces for positive social change, it is vital to ensure their continued existence.”
Ligon’s article was recently praised on the First Amendment News blog as a “thoughtful” analysis of the recent rise in lawsuits targeting the press. “At a time when so much legal scholarship is either of the case-crunching or meta-theory variety, it is a welcome surprise to read something with real-world implications,” First Amendment scholar Ronald K.L. Collins wrote.
A poor financial outlook made worse by the threat of litigation
Data show a perilous landscape for community news outlets. In the early 1900s there were about 24,000 daily or weekly publications, with most communities served by at least two, according to a 2020 report from the Center for Innovation and Sustainability in Local Media at UNC-Chapel Hill’s Hussman School of Journalism and Media.
More than 2,000 papers have vanished in the past 15 years alone, leaving only about 6,600 community newspapers, the report says. According to the Center’s interactive “News Desert” database, 225 counties in the U.S. do not have any newspaper at all.
While primary culprits are industry consolidation and loss of ad revenue due to the move to digital, recent political hostility toward the media and an increasing willingness to litigate puts pressure on news outlets to refrain from printing controversial stories or conducting watchdog reporting for the public’s benefit, Ligon says.
In 2018, she writes, the Carroll Times Herald, a small-town Iowa newspaper with five news staffers, nearly closed after it was sued for libel over a story, based on public records and interviews, detailing a police officer’s inappropriate relationships with teenage girls and previous firing. While the case was dismissed, the nearly year-long litigation cost the paper $140,000 in lost revenue and fees not covered by libel insurance. The 153 year-old family-owned newspaper raised more than $100,000 through GoFundMe to stay in business.
National outlets like The New York Times and corporate newspaper owners are also not immune to these lawsuits. California Congressman Devin Nunes has filed numerous defamation lawsuits against high-profile media outlets including CNN, Twitter, Hearst, The Washington Post, and the McClatchy Corp. While most of those suits have been dismissed or withdrawn, it costs an average of $500,000 to defend such libel or defamation suits, The Poynter Institute reports.
“That’s an entire year of payroll for a lot of these companies,” Ligon notes. “In a day and age where people are more and more litigious, you have a lot of people who feel emboldened to use the courts to silence people.
“It really does have a deleterious effect when a place of business has to pay half a million dollars to dismiss a case, even though that case is not meritorious, and it’s putting them out of business.”
Libel defense for news outlets is an increasingly large part of the First Amendment Clinic’s caseload, and passing the UPEPA in North Carolina would be a boon for local media across the state who are increasingly vulnerable to attacks by public officials. In November 2020 Gaston County filed a libel lawsuit against the Gaston Gazette, a 23,000-circulation newspaper, after it reported county commissioners had settled nearly $400,000 in workers compensation claims in a closed-door session. First Amendment experts were in broad agreement that the commissioners could not make a defamation case against a paper reporting on public business.
"If North Carolina had an anti-SLAPP statute it would be very easy for the Gaston Gazette to get this dismissed," Clinical Professor Sarah Ludington, the First Amendment Clinic’s director, told WFAE in December.
Though the suit was dropped the following month, the county said it might pull its annual $70,000 to $100,000 ad spending from the paper, a potentially devastating revenue hit for the only daily newspaper in Gaston County, and one whose editors have long advocated for open government.
How anti-SLAPP laws work
The legislation that Ligon and First Amendment Clinic students are championing to protect North Carolina individuals and news outlets from the threat of such costly litigation is the Uniform Public Expression Protection Act (UPEPA), a model bill approved by the Uniform Law Commission in July 2020.
The UPEPA protects defendants and the court system from frivolous lawsuits by requiring plaintiffs to establish a prima facie case early in the litigation process, providing for an expedited hearing process and a mechanism for dismissing frivolous lawsuits, and shifting the cost burden to plaintiffs if their claims are found to be without merit.
Five key legal mechanisms accomplish this, according to the bill, by:
- creating specific vehicles for filing motions to dismiss or strike a case early in the litigation process;
- requiring the expedited hearing of these motions, coupled with a stay or limitation of discovery until after they are heard;
- requiring the plaintiff to demonstrate the case has some degree of merit;
- imposing cost-shifting sanctions that award attorney’s fees and other costs when the plaintiff is unable to carry its burden; and
- allowing for an interlocutory appeal of a decision to deny the defendant’s motion.
Currently 32 states and the District of Columbia have anti-SLAPP laws that offer varying degrees of protection. There is no federal anti-SLAPP law.
Anti-SLAPP bills have attracted broad support across the political spectrum: both California and Texas have enacted some of the nation’s strongest protections. Opposition comes mainly from the plaintiffs’ bar, which objects to the rapid disposition of cases without a trial stage.
“It’s a quick way for defendants to get First Amendment claims dismissed, so plaintiffs’ attorneys are saying, ‘What about our plaintiff’s day in court?’ But the reality is, that with these types of cases, a ‘day in court’ is really just a euphemism for many months, or even years, in court.” Ligon says.
“The fact of the matter is an anti-SLAPP statute won’t allow for dismissal of a meritorious claim that is First Amendment-based. There’s a very high standard to dismiss a claim.”
Some states have raised concerns about a provision in the UPEPA statute requiring a plaintiff to pay the movant’s attorney fees if a case is dismissed under an anti-SLAPP motion. That provision was specifically drafted to preclude forum shopping for states that don’t mandate payment of attorney fees – the reason Nunes filed his defamation suit in Virginia against the California-based Fresno Bee.
“Their anti-SLAPP statue is super weak and it is interpreted as allowing jurisdiction to extend to a lot of cases,” Ligon says. “If Devin Nunes had sued the Bee in California and lost, he would have had to pay their legal fees because California’s statute mandates attorney’s fees.”
Strong interest in bill by legislative commission
North Carolina lawmakers were interested in the bill and receptive to the presenters at the February virtual meetings, which included Ligon, Katie Hillyer ’21, and Lauren Smith ’21, and other supporters and media law attorneys invited by the First Amendment Clinic.
“I believe it was one of the most popular bills that they’ve received in the last year – many people were interested in commenting,” Ligon says. “I am hopeful the Commission will recommend adopting it to the legislature.”
Hillyer answered questions about how the bill would comport with the state’s rules of civil procedure and Smith explained why the bill is needed and whom it would protect.
“It’s important for us, when we speak from a policy perspective, to explain that these types of anti-SLAPP protections are not just about the press as many people conceptualize it,” Ligon says.
“These issues extend far beyond what we think of as the mainstream press. It’s localized papers that are being shut down. It’s women who speak out about having been sexually assaulted and then find themselves hit with a defamation lawsuit by their oppressor. It’s bloggers and members of the community who want to weigh in on a rezoning and say, ‘I don’t think this is good for the neighborhood’ and then find themselves being sued for millions of dollars.
“We emphasized that this is an issue that spans far beyond that and really affects the citizens of North Carolina on an individual level.”
Clinic members will appear again before the General Statutes Commission on May 7, when commissioners may take final action on the bill.