Rep. James Reavis, D-Billings, speaks before the House Judiciary Committee about House Bill 292 which would prohibit strategic lawsuits against public participation. (Photo screenshot via Montana Public Affairs Network)
For now, it’s safe to say that no bill may ever be quite as popular as House Bill 292, which unanimously passed the Montana House of Representatives on Thursday and would protect citizens and journalists from “SLAPP” lawsuits.
If passed into law by Montana, after going through the Senate and the governor’s desk, it would give new protections to those targeted by “SLAPP” lawsuits, which stands for “strategic lawsuit against public participation.”
The bill, cosponsored by Reps. Tom Millett, R-Marion, and James Reavis, D-Billings, demonstrated bipartisan and overwhelming support throughout its journey in the House, where it passed the Judiciary Committee 20-0, and then passed both readings on the full House floor by votes of 100-0, and 99-0.
The bill will now head to the Montana Senate.
SLAPP lawsuits, which have garnered attention increasingly, including an entire segment on the popular HBO news show, “Last Week Tonight with John Oliver,” are often filed by large corporations or sometimes even government entities to try to prevent the public or media from bringing facts to the public’s attention. Often, the lawsuits are funded by corporations or businesses that have extensive legal resources or in-house attorneys, while those speaking out against them must hire their own attorneys, and may not have the legal resources to challenge it in court, thus stifling or completely ending criticism or investigation into wrongdoing.
As many advocates argue, the purpose in SLAPP lawsuits isn’t to win, it’s to stop the opposing party from being able to fight, using wealth and the justice system to force opponents to stop.
“The real goal is to entangle the defendant in expensive litigation and stifle their ability to participate in constitutionally related activities,” Millett said.
Both sponsors of the bill told fellow lawmakers that the legislation is modeled after other states that have adopted similar laws. The new anti-SLAPP bill allows courts to quickly dismiss SLAPP lawsuits, while forcing those who brought the suit to pay for the other side’s attorney fees. Reavis and Millett said that provides a deterrent from bringing bad faith lawsuits.
And both sponsors pointed out that the legislation was consistent with freedom of speech, freedom of press, and freedom of association protections found in the state and federal constitutions.
“The mandatory nature of attorneys’ fees will help stop the filing in the first place,” Millett said.
As an attorney, Reavis said fellow lawyers will look at these cases differently.
“It will discourage the practice because an attorney will have to warn their client that they could be on the hook for the other side’s attorneys’ fees,” Reavis said.
Jacqueline Lenmark, one of five Montana Commissioners on the Uniform Law Commission, said her group unanimously supports the measure, which has been adopted in 32 other states.
The bill also had the support of some larger, higher profile groups, like the Motion Picture Association of America, which represents large news organizations as well as small independent documentary filmmakers, who are often sued to stop reporting on a project.
“This protects everyone’s free speech against costly and unnecessary litigation,” said MPAA lobbyist Jessie Luther.
Al Smith of the Montana Trial Lawyers Association said his organization supports the efforts, too.
“Bad attorneys and their clients get dinged for bringing bad suits, and good attorneys get fees because they brought a valid lawsuit,” Smith said.
He said as Montana law stands currently, even fighting a SLAPP lawsuit can take years and thousands of dollars.
“This speeds it up and protects free-speech rights,” Smith said.
Jay Adkisson, an attorney in Nevada, told about his experiences as an attorney being sued. He said he was once sued for $4.7 billion and also faced a $20 million SLAPP lawsuit in California, just for writing about a court opinion for forbes.com
He said that both were eventually dismissed, but similar suits could also stifle free speech and a free press. And both lawsuits took an extensive amount of time just to fight, even though he was successful, and the claims were preposterous.
“These cases are not about winning in court, but about wasting the resources of those who speak out,” Millett said. “We need to make it harder for entities to abuse the legal system.”