Plaintiffs are increasingly using legal tactics to shut down criticism

Amy Kristin Sanders is the John and Ann Curley Chair in First Amendment at Penn State. She is a former journalist and licensed attorney.

It’s old news that threats against freedom of the press are on the rise.

The headlines increasingly tell the story of journalism under attack. Whether it’s government officials levying access restrictions or wealthy community members threatening to sue, news organizations face an expanding list of challenges aimed to hamper their reporting.

“In the first 100 days of President Donald Trump’s second term, there have been a startling number of actions that, taken together, threaten the availability of independent, fact-based news for vast swaths of America’s population,” according to a new report out from the Committee to Protect Journalists. “These moves represent a notable escalation from the first Trump administration, which also pursued banning and deriding elements of the press.”

Organizations that advocate on behalf of journalists and news organizations, including CPJ, the Reporters Committee for Freedom of the Press and the Media Law Resource Center, have observed several alarming trends.

Rather than filing defamation lawsuits, some plaintiffs are turning to state consumer protection laws, said Gabe Rottman, the vice president for policy at the Reporters Committee. He pointed to pending lawsuits in Texas against CBS for its interview of Kamala Harris on “60 Minutes” and in Iowa against the Des Moines Register and pollster Ann Selzer.

“Consumer protection laws are crucially important when we’re talking about things like poisoned food,” Rottman said. “But when you’re getting into whether a news organization is consistently following its editorial standards … consumer protection laws are a poor fit for those types of claims.”

Attorneys often refer to these lawsuits as SLAPPs, or Strategic Lawsuit Against Public Participation. They are often filed by public officials or high-profile individuals who want to punish critics and discourage others from engaging in similar criticism.

“Consumer protection laws are crucially important when we’re talking about things like poisoned food. But when you’re getting into whether a news organization is consistently following its editorial standards … consumer protection laws are a poor fit for those types of claims.”

Gabe Rottman, vice president for policy, the Reporters Committee

ProPublica Managing Editor Charles Ornstein found himself embroiled in a SLAPP suit in Texas for nearly six years. Eventually, the lawsuit was dismissed without going to trial.

The goal of these lawsuits is clear: tie up defendants’ time and money in court in an effort to silence them. But a procedural mechanism, known as an anti-SLAPP law, may offer defendants an opportunity to short-circuit frivolous lawsuits before a lengthy trial.

Laura Prather, whose firm represented ProPublica, said she has managed to get some lawsuits dismissed in fewer than 90 days using anti-SLAPP laws, but others — like the lawsuit against ProPublica — may take much longer.

Although there is no federal anti-SLAPP statute, 36 states have enacted anti-SLAPP laws. In mid-April, Iowa looks poised to become the 37th after both houses unanimously passed an anti-SLAPP bill. It awaits Gov. Kim Reynolds’ signature..

Best practices for minimizing risk

Even without the protection of an anti-SLAPP law, Ornstein, Prather and Rottman were all in agreement about the best protection against SLAPP lawsuits: high-quality journalism.

“Best practices are always going to be best practices, and that is true if you’re in jurisdiction with an anti-SLAPP law or one without an anti-SLAPP law,” Rottman said. “Good journalism is the best defense against being sued.”

Ornstein credits careful reporting and journalism fundamentals as keys to helping fend off the SLAPP suit he faced.

“Show your work: the documents, the data, the conversations,” he said. “Link to them.”

Prather, the attorney who represented Ornstein, agreed.

“Not only did Charles do a phenomenal job with his files, his details and his backup, he had layer upon layer of footnotes in the article so the reader could go look at the source materials,” Prather said. “That made a huge difference.”

Media lawyers still need to caution journalists about the possibility of being sued, Prather said.

“We have to prepare our reporters for the unexpected,” she said. “He did a completely defensible job in his reporting” and still faced a lawsuit.

It is not just journalists who are being targeted by SLAPP suits.

“Anyone who is speaking about issues that other people find to be uncomfortable truths could potentially be subject to a SLAPP suit.”

Laura Prather

“Anyone who is speaking about issues that other people find to be uncomfortable truths could potentially be subject to a SLAPP suit,” Prather said. Recent SLAPP lawsuits have involved environmental advocates such as Greenpeace, whistleblowers and survivors of domestic abuse or sexual assault.

Reporters covering contentious issues or beats — immigration, campus protests, the #MeToo movement — should take extra care to make sure their reporting doesn’t allow the audience to read between the lines.

“Certain subjects are more likely to be litigious, so you want to be all the more buttoned-up,” Rottman said. “Aggressive reporting is essential, but be smart while you’re doing it.”

Ornstein, who also teaches at Columbia Journalism School, offered three suggestions for journalists who want to minimize their risk of being sued.

“Link early and often to the basis of your reporting,” he said. “Have your receipts.”

It is critical to have the public records, documents and other materials that support the reporting. Those documents will prove essential in the event of litigation.

He also stressed the importance that recording phone calls played in his lawsuit.

“Link early and often to the basis of your reporting. Have your receipts.”

Charles Ornstein, managing editor, ProPublica

“If it had been our word against theirs, it’s a much tricker situation,” Ornstein said.

Finally, he encourages journalists to follow a “no surprises” rule by presenting their reporting to the person or organization being investigated to give them a full opportunity to engage with the reporting.

“It’s what you’d want,” he said. 

But minimizing the risk of litigation is not just about what gets published in the newspaper or on a news organization’s website.

Journalists should be aware that nearly all communications — even text messages exchanged with co-workers — are potentially discoverable in a lawsuit, and that can make it more difficult for defense attorneys.

“They’re lulled into thinking that Slack is a medium that isn’t going to be preserved,” Prather said, warning that those casual conversations among coworkers can get taken out of context.

Phone calls and face-to-face conversations are a much safer way for journalists to discuss stories, concerns about sources or other dicey reporting issues with their editors.

Although the risk of being sued may be on the rise, journalists should take comfort in the fact that responsible reporting can still win the day.

“All of the best practices that media lawyers have been counseling for years still apply,” Rottman said.

The increasing number of state anti-SLAPP laws on the books and growing support for a federal anti-SLAPP law help protect freedom of expression for everyone, including journalists.

“It’s about ensuring sustained freedom of speech for those who agree with you and folks who don’t,” Ornstein said.

---

Cite this article

Sanders, Amy Kristin (2025, April 30). Don’t get SLAPPed: Minimizing the risk of vexatious libel lawsuits. Reynolds Journalism Institute. Retrieved from: https://rjionline.org/news/dont-get-slapped-minimizing-the-risk-of-vexatious-libel-lawsuits/