Rep. Kara Hope (D-Holt) speaks on the House floor on June 21, 2023. (Photo: Anna Liz Nichols)
Lawmakers have put forward legislation that would make it more challenging for people to be sued for expressions of free speech. If passed, the law would give defendants the option to ask for justification for the suit early on.
The idea is that a person might protest or speak out against someone with more wealth and power than them. In this case, the more powerful individual might bring a retaliatory case against them. These lawsuits can be expensive and used to intimidate people out of using their free speech rights.
HB 5788, introduced by Rep. Kara Hope (D-Holt) earlier this month, would allow the defendant to file a motion early on in the case, forcing the plaintiff to justify the lawsuit.
These cases are known as strategic lawsuits against public participation, or SLAPP.
“Again, it’s plaintiffs filing these suits, not really hoping to win the lawsuit, but wanting to cause a lot of stress and money and pain to that defendant,” Kaitlin Wolf, the Uniform Law Commission legislative program director, said during a legislative hearing Tuesday.
SLAPP lawsuits can be slung at a variety of people and be used in many different ways, Hope told Michigan Advance. She said activists and environmentalists can be targeted for speaking against land-development projects. Hope also said people who have been sexually assaulted might not pursue a case because they fear a defamation lawsuit.
In a written legislative testimony, Christy McGillivray, the political and legislative director for Sierra Club Michigan, said fossil fuel companies use SLAPP lawsuits to silence climate activists and environmental journalists.
“I think there’s not really any downside to this legislation when it comes to allowing people to exercise their First Amendment rights,” Hope said.
Michigan attorney Danielle Canepa, speaking at the Tuesday legislative hearing, said SLAPP suits are becoming “increasingly common.”
The bill does put limits on when the anti-SLAPP legislation can be utilized. For example, defendants cannot file a motion against most discrimination cases, like violation of Title IX, the American with Disabilities Act and the Civil Rights Act.
Additionally, Hope said this will not influence the results of a case that unfairly gets an anti-SLAPP motion.
“This doesn’t change the burden of proof, it doesn’t change the standard, it doesn’t deny anyone any appeal or anything like that,” Hope said. “It’s just an expedited way to end a frivolous lawsuit. If the suit has merit, then it will be able to proceed.”
The motion also should not increase elements like cost or burden of proof to anyone involved, given the lawsuit is legitimate, according to Canepa.
Michigan is currently one of seventeen states without anti-SLAPP legislation. Bills protecting citizens from SLAPP cases are mostly uniform across states, Hope said.
“They could take advantage of the lack of an anti-SLAPP bill to sue people, to quiet them and unfairly burden them with the cost of defending against a frivolous lawsuit,” Hope said.
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