SLAPPing Back: Addressing the Legal Threats to Online Free Speech

As communication technology continues to become integrated into our daily lives, the internet is increasingly the go-to source for on-the-go information about where to shop, where to eat, where to work, and where to live. And thanks to the entrepreneurial innovation of businesses and consumers alike, the ability to share information through online user reviews is easier than ever.

However, with government bodies often behind the times in an increasingly technological world, public participation in speech online presents its own unique set of risks and poses danger to the freedoms afforded by the First Amendment. This is perhaps best evidenced by strategic lawsuits against public participation (SLAPPs), which retaliate against negative feedback. Such efforts to suppress speech not only undermine the value of review-based websites and apps, which rely on broad public participation, but threaten the freedoms afforded by the First Amendment.

It is against this backdrop that the Charles Koch Institute, along with Glassdoor, the Internet Association, TripAdvisor, and Yelp, recently brought together an array of voices to Washington, DC, for a discussion of online free speech and its current legal threats.

Benny Johnson, creative director of the Independent Journal Review, moderated the panel, beginning with a “lightning round” of scenarios for panelists to identify what is and isn’t protected speech. These scenarios ranged from expressing opinions in restaurant reviews to retweeting factually incorrect information that harms someone’s reputation. Although the panel remained optimistic about the protected nature of speech in most of the scenarios, Shaun Martin, professor of law at the University of San Diego School of Law, remarked, “The danger is in the consequences of being wrong.”

“Anonymous free speech is critical to our business,” said Dawn Lyon, vice president of corporate affairs at Glassdoor. “But more so, anonymous free speech is critical to our users.” Lyon discussed several SLAPPs her company has encountered, including one that demanded Glassdoor reveal the name of a user who had left a review of her employer. “She made one statement: ‘I haven’t been paid in weeks,’” Lyon recalled. “[Employers] want to reveal their [employees’] identities, and they want to take them to court. But we work hard to protect our users.”

Just the idea of legal retaliation is enough to create a chilling effect for users online, argued Emma Llansó, director of the Free Expression Project at the Center for Democracy and Technology. While she pointed out that the United States generally has strong speech protections in comparison to other countries, Llansó also explained that “the mere threat of having that lawsuit … can dissuade users from expressing themselves.”

“We have traditions of strong protections of anonymous speech, and the First Amendment provides enough freedom to allow for anonymity,” added Mike Godwin, the director of innovation policy and general counsel for R Street Institute. “Instead of lawsuits … we should change our thinking to correcting the record.”

“It’s people with a lot of resources going after those without a lot of resources,” said Lyon.

The panelists agreed that the variation of protections among states also complicates speech rights. “One emerging threat is where a lawsuit gets filed,” Llansó explained. If a SLAPP is filed in a state far away from where the defendant lives, “people don’t, or can’t, show up and then you have the court ordering their speech taken down.” Godwin pointed out that California and Texas had recently enacted anti-SLAPP protections, but other states, like Virginia, had virtually no protection of online speech.

“It’s a real threat out there when employees just want to speak their mind,” Lyon said, advocating for stronger anti-SLAPP protections.

“Speech made in the public interest is the most important, and that’s where these lawsuits are most problematic,” concluded Professor Martin.

The intersection of free speech and technological innovation holds unique potential to impact both the economy and culture. The Charles Koch Foundation therefore invites proposals for research projects that seek to further understand the ways in which innovation and toleration can help people improve their lives.

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