Reporter Jared Strong spent weeks investigating a police officer for his alleged inappropriate relationships with teenage girls. He used more than 20 sources to compile his investigation.

The Carroll Daily Times Herald, the family-owned paper in Iowa where Strong worked, published his report in 2017 on the officer’s resignation and the allegations behind it.

The next day, Strong learned that he and the Times Herald had been sued for defamation.

“Typically, with lawsuits like this there’s some sort of demand for retraction or attraction,” Strong said. “There was none of that. We just got the lawsuit immediately.”

The officer’s lawsuit is a textbook example of a Strategic Lawsuit Against Public Participation, or SLAPP. These lawsuits are often frivolous but have the potential to involve defendants in a costly and time-consuming legal process. According to the Reporter’s Committee for Freedom of the Press, SLAPPs can have a “chilling” effect on free speech.

Seventeen states still don’t have an anti-SLAPP law. Iowa, where the Times Herald was sued, is one of them. Anti-SLAPP laws protect free speech rights against meritless suits like the one Strong and the Times Herald faced.

Journalists in these states often fight uphill battles with little legal protection against expensive and trivial defamation lawsuits. Knowing the legal strategies available can minimize the time and money spent fighting a frivolous lawsuit.

Legal strategies

Michael Giudicessi, the lawyer who represented the Times Herald and Strong, said there are three options a defendant can pursue when fighting a frivolous defamation suit. They include asking the plaintiff for clarification, pursuing a motion to dismiss and responding to the plaintiff’s complaint.

A motion to dismiss seeks to strike down the case early in the legal process by arguing that a lawsuit could not possibly hold up in court. It is important that lawyers keep in mind how legal actions are frequently judged in their state. Giudicessi said that since state courts in Iowa don’t commonly grant motions to dismiss, he doesn’t always use them when defending publications against defamation suits. Skipping this step may reduce the costs a publication would incur because of a failed motion to dismiss.

However, Giudicessi said motions to dismiss are becoming more common because defamation suits appear to be increasing. He’s seen more defamation suits since 2020 than in the ten years prior.

In many states, a defendant can file for a more definite statement if they believed the plaintiff was too ambiguous in their pleading, such as if they didn’t specify what false statements were made. This motion delays discovery, giving a defendant more time to prepare. According to Sandberg Law, it may also demonstrate that the plaintiff has no standing legal argument and create grounds for a motion to dismiss.

However, Giudicessi said that, in some jurisdictions, a motion for a more definite statement is filed at the same time as a motion to dismiss. He said this can make it risky for those using it as a tool to delay discovery, as a motion to dismiss might not be available if a motion for a more definite statement is denied.

If a lawyer chooses not to pursue a motion to dismiss, or if it fails, they can file a motion for a summary judgment. Also called a summary disposition, cases dismissed at this stage have often already been subject to discovery but have not gone to trial yet.

The officer’s lawsuit against the Times Herald went on for about nine months before it was dismissed in a summary judgment. Despite their success, Strong said the case generated an estimated $150,000 in legal expenses. He said that amount would have doubled if the lawsuit went to trial.

“It makes you a lot more careful,” Strong said. “Even though we were very aggressive in our reporting for years, getting sued kind of changes that. It makes you question ‘is this going to be worth it? Is it going to be worth it to write the story and make people angry and potentially spawn a lawsuit?’”

Deadline Detroit’s fight for sanctions

In an attempt to reduce costs and fight SLAPPS, defendants might also look for state statutes specific to early dismissals of frivolous or meritless lawsuits. Some states also offer opportunities to recover court fees. For example, under the South Carolina Frivolous Proceedings Sanctions Act, an attorney may be sanctioned for filing a “frivolous pleading, motion, or document.” In New Hampshire, Frivolous Lawsuits and Punitive Damages allows the court to order summary judgment against a frivolous lawsuit and award the costs incurred in court.

When faced with a defamation suit, Deadline Detroit pursued sanctions through a Michigan law that provided sanctions for cases “devoid of arguable legal merit.”

The publication was sued after publishing a story in 2021 about a participant at a school board meeting who performed a Nazi salute and yelled “heil hitler” in response to a discussion regarding mask mandates.

Six months later, Allan Lengel, the co-founder of Deadline Detroit, heard a knock on his door. When he opened it, he learned that the publication had been sued over the story on multiple counts, including defamation.

“It was such a routine story,” Lengel said. “I was kind of shocked that someone would file such a frivolous lawsuit.”

Lengel said that the paper sometimes receives letters threatening to sue. Before this case, none had resulted in actual lawsuits.

The legal representation for Deadline Detroit sent a letter to the plaintiff’s legal counsel, arguing that they had no case. Despite the letter, the case continued.

The case was dismissed in a summary disposition. The plaintiff had failed to allege a specific, false statement in the article. However, the court did not award frivolous litigation sanctions. Even with libel insurance, the paper ended up paying around $5,000 in out-of-pocket expenses.

Lengel said that sanctions would have sent a “strong message” to the lawyer who agreed to pursue a frivolous case.

“There’s nothing to stop him from doing this again,” Lengel said.

When faced with steep legal costs, many papers reach out for public support. The Times Herald set up a GoFundMe. Deadline Detroit asked readers to contribute to help pay the “sizable legal fees.”

Yet, it often isn’t enough to rely on readers to fund the legal fees for frivolous lawsuits. In some cases, a lawsuit could bankrupt a paper. In others, it could prevent a journalist from publishing a story in fear of facing a lawsuit.

“This type of litigation could kill a newspaper,” Strong said.

Anti-SLAPP law privileges

Although lawyers have options they can use to confront SLAPPs, they often aren’t as strong as the options granted through anti-SLAPP laws.

There has been a push in recent years to expand anti-SLAPP legislation. The Times Herald was cited in a 2023 anti-SLAPP bill brought before the state house of representatives. The bill passed the house but later died in committee.

The language of anti-SLAPP laws differ, but common strengths include an expedited legal process and a reclamation of legal fees.

For example, in many states without anti-SLAPP legislation, a plaintiff can request discovery before a summary judgment is ruled on.

“That could mean a couple of different things,” said David Keating, the president at the Institute for Free Speech. “They could ask for your records. Your records might include things like your emails, maybe your text messages. Obviously, this would be very intrusive and it’s a lot of work to compile all of the messages.”

Discovery can be an expensive and time-consuming process. Many anti-SLAPP laws delay this process until after the anti-SLAPP motion is resolved.

Anti-SLAPP legislation also often requires the plaintiff to pay for the defendant’s legal fees. Because of this provision, anti-SLAPP legislation can increase the amount of lawyers willing to take on clients that can’t afford legal fees. It also discourages clients from filing frivolous lawsuits and lawyers from taking up cases they can’t win.

Keating said that in states without anti-SLAPP legislation, it can be difficult to recover legal fees. As exemplified by the Deadline Detroit case, attempts to recover court fees aren’t always successful.

Several initiatives are advocating for anti-SLAPP laws in states without them. The Uniform Law Commission has drafted anti-SLAPP legislation that has been enacted in eight states in the last five years. A draft of that legislation can be found online.

The Society of Professional Journalists has highlighted strategies to use when advocating for anti-SLAPP laws. Their recommendations are guided by past examples, both successful and unsuccessful.

Until an anti-SLAPP law is implemented, publications will have to rely on other strategies to fight SLAPPs.

Whether your state has an anti-SLAPP law or not, all journalists can take preemptive steps that will increase their likelihood of early success in court. Giudicessi recommends journalists think carefully about how their “news reports” are worded. When possible, he said journalists should consult with attorneys or newspaper hotlines in the state. He also recommends reporters ensure they’re involved in each part of how a report is presented, including cutlines and headlines.

Careful reading can be the difference between a successful summary judgment motion and having to spend the time and money required to go to trial.

Sara George is a recent graduate from the Missouri School of Journalism. She will begin her graduate work at the London School of Economics and Political Science this fall.

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Cite this article

George, Sara (2024, July 23). If your state doesn’t have an anti-SLAPP law, you should read this. Reynolds Journalism Institute. Retrieved from: https://rjionline.org/news/no-state-anti-slapp-law-heres-how-journalists-have-fought-slapps/