Senator Ron Wyden of Oregon, along with Representatives Jamie Raskin and Kevin Kiley have introduced a new federal Anti-SLAPP law known as the Free Speech Protection Act (“FSPA”). The purpose of the FSPA is, like all Anti-SLAPP laws, to further solidify the constitutional protections of the First Amendment for free speech and association and the right to petition for redress by causing the early dismissal of frivolous or abusive litigation which infringes upon those rights. By protecting these important First Amendment rights, one could reasonably argue that the FSPA is the most classical American legislation currently before this term of Congress.
“The rich and powerful are all too willing to use the legal system to bludgeon reporters, activists and whistleblowers with expensive lawsuits, even if the claims have no merit,” Sen. Wyden stated in introducing the FSPA. “I’m proud to lead the Free Speech Protection Act in the Senate and work with Reps. Raskin and Kiley to advance the proposition that federal judges should be able to end frivolous lawsuits and protect free speech from abusive legal threats.”
The proposed legislation, which may be found here, largely tracks the Uniform Public Expression Protection Act (“UPEPA”), which has been adopted by eight states and is currently under consideration by numerous other states. The UPEPA was itself an amalgamation of the better Anti-SLAPP laws of such states as California, Nevada and Texas. Currently, some 34 states have Anti-SLAPP laws and the UPEPA is in some phase of consideration ― even if not yet formally introduced ― in most of the remaining 16 states.
The timing of the FSPA could not be better. As I have previously written in my article The European Union Adopts Anti-SLAPP Directive (June 6, 2024), the EU member states are required to adopt Anti-SLAPP legislation within the next several years, and the FSPA can serve as model legislation for these EU states. Thus, the United States through this federal legislation can continue its leadership as the world’s beacon for the rights of free speech.
Closer to home, the FSPA will also serve several important purposes. First, there currently is no Anti-SLAPP legislation in the U.S. District Courts where jurisdiction is based on something other than diversity jurisdiction (cases involving citizens of different states) when the state Anti-SLAPP laws might apply. Second, there is a split among the U.S. Circuit Courts of Appeals as to whether state Anti-SLAPP laws even apply in cases based upon diversity jurisdiction, and the FSPA will resolve this split as federal legislation. These two issues have led to forum-shopping by the litigants who have brought abusive litigation to try to stay away from state Anti-SLAPP laws. The third benefit of FSPA is that the passage of federal legislation will further encourage the remaining 16 states that are without their own Anti-SLAPP legislation to adopt their own such laws.
“Two-thirds of the states now have laws limiting frivolous lawsuits that seek censorship. Most pass with strong bipartisan support that is often nearly unanimous,” said David Keating, President of the Institute for Free Speech. “It’s time Congress caught up with the states. The Free Speech Protection Act addresses a critical gap in defending Americans’ First Amendment rights. The state laws often don’t apply in federal courts, so censors frequently file these abusive lawsuits there. This legislation would ensure defendants can quickly end meritless, speech-suppressing lawsuits in federal court and recover their legal costs. The next Congress should move quickly to consider this important bill, which is an excellent starting point for protecting Americans from this threat to free speech. I hope there will be helpful suggestions for improving it in committee. To protect free speech, Congress must soon pass the strongest possible Free Speech Protection Act.”
Kirk Herbertson, U.S. Director for Advocacy and Campaigns, EarthRights International, continues: “People across the political spectrum should be able to have a voice in decisions that affect their lives without fear of being sued into silence by those with more wealth or power. Courts are for seeking justice, not for retaliating against one’s critics.”
Moving on to the text of the FSPA ― recalling that it may be substantially changed in committee and by amendments ― the proposed legislation largely tracks the UPEPA and the better state Anti-SLAPP Acts in its operations. However, there are at least a couple of issues that deserve further consideration and at least one of which I am critical (the absence of a mandatory appeal of right if the special motion to dismiss is denied), but I’ll save those considerations for another day. The FSPA represents very good litigation and at any rate should not be stopped by these issues.
Finally, and although the FSPA is bipartisan in nature and has the support of a large number of various groups, there is no guarantee that the FSPA will be successfully passed owing to the general and well-known current political dysfunction of Congress. The last time that I wrote about such federal litigation was in my article Federal Anti-SLAPP Legislation Re-Introduced In Congress But Needs Updating (Aug. 29, 2020), which discussed the Citizens Participation Act of 2020. However, there is now substantial momentum from the states for Congress to pass the FSPA since a majority of states now have Anti-SLAPP laws and it is difficult to imagine Congresspersons from those states not supporting similar legislation.
So, we’ll keep our fingers crossed.