Pity the poor lawyer who has to argue on behalf of his employer’s desire to curtail the public’s free speech rights. Not only are you indirectly arguing on behalf of those who’ve abused the legal system to stifle speech, but your defensive arsenal is going to be limited to assertions that are ineffectual, blunted, stupid or any combination of the above.
Free speech in the US is (mostly) an absolute. There are very few areas that aren’t covered by this Constitutional protection. Defamation is one of those areas. But defamation isn’t what so many people apparently believe it is — i.e., unpleasant things being said about/to them. Many nasty things can be said without rising to the level of defamation, but that’s rarely considered before lawsuits get filed. Anti-SLAPP laws — instituted by far too few states — ensure that aggrieved parties double-check their allegations before filing a defamation suit.
Nevada has a perfectly fine anti-SLAPP law, but aggrieved parties who’d rather exercise their perceived “right” to use bogus lawsuits as speech suppression devices are looking to carve out everything about the statute that makes it a deterrent. The person chosen to sell this dismantling of legal protections is Mitchell Langberg, outside counsel for Wynn Resorts (and self-proclaimed “expert” on anti-SLAPP laws). Steve Wynn, the company’s owner, recently lost a defamation lawsuit in California, thanks to its anti-SLAPP law. Now, he wants the law changed on his home turf. Langberg appeared (by phone) on Nevada Public Radio to argue on behalf of his employer — as well as on behalf of the Roca Labs and Thomas Cooleys of the nation. When you’re sticking up for plaintiffs like these, what do you say? What can you say?
Well, apparently you start by referring to online criticism as “online terrorism” before heading towards even worse assertions.
According to Langberg, the existing law is too broad and offers too much protection to the public. He wants to remove the “clear and convincing evidence” stipulation and replace it with a much lower bar of “some evidence.” (He refers to a “70-75% convincing” evidentiary standard, which I don’t even know what that means…) He also claims the statute is “intimidating” to businesses, especially the small ones, who feel they must just deal with criticism — even false criticism — because they have no way of proving the statements made are false, at least not to the extent that the law demands.
The unspoken summation of these points is this: if potential plaintiffs are finding it hard to prove defamation, chances are it doesn’t rise to the level of defamation.
But it gets worse from there. By four minutes into his call, Langberg has referred to Yelp as being a “mechanism” that allows for “online terrorism and character assassination.” A few minutes after that and he’s reduced to regurgitating anti-speech cliches.
First, there’s the qualified support of free speech, which always starts with the person arguing for limiting speech giving his or her First Amendment version of the “some of my best friends are black” argument. (“I’m not racist…”)
I support the First Amendment right to free speech. I’m a strong supporter of it. I have represented newspapers in my career against defamation complaints.
I’m also a strong supporter of people’s rights to protect their reputation, which is also a First Amendment right — the right to petition the government when you’ve been harmed — by filing lawsuits.
So far, it’s mostly acceptable, although it seems clear Langberg is far more concerned with upholding the rights of the latter group, which apparently values “petitioning” over exercising their right to counter critical speech with speech of their own.
Then the love for the First Amendment starts slipping.
There is no First Amendment right to say false things.
Sometimes true, but context matters (satire, etc.). And statements of opinion are often misconstrued by litigants as false statements.
And then, Langberg destroys his own reputation as an expert on anything speech-related.
There is no First Amendment right to scream “fire” in a theater.
Every state’s bar association should add a stipulation providing for the banning of any lawyer uttering this phrase from acting as counsel in First Amendment lawsuits. The only people who deploy this phrase are those who can’t find anything coherent (or precedential) to support their particular beliefs as to what the First Amendment should cover, rather than what it actually does. Meanwhile, we’ll take the opportunity to point to Andy Sellars’ excellent new post about all of the many times you can yell “fire” in a crowded theater.
And, continuing his way to the bottom of the rhetorical reef, chained to the mast of his swiftly-sinking arguments, Langberg then asserts that the right to free speech isn’t actually a right.
The First Amendment right is a privilege and a responsibility.
Now that it’s simultaneously a right and a privilege, all sorts of crazy things can be asserted.
There are certain limitations. You can’t say anything you want, any time you want.
Agreed, but how can anyone not agree with such a robust strawman!
People’s reputations are very, very valuable.
So there has to be a balance between people’s right to speak freely and their necessary responsibility when they abuse that right.
What? There is a right to speak freely. Those who disagree hold the same right. You can’t really “abuse” the right. You either stay within its bounds or you find yourself outside of its protections. Defamation is outside of that boundary. The law Langberg is arguing against does nothing to prevent the pursuit of defamation suits. But Langberg wants a law that allows him and his clients to hold people “responsible” for protected speech. That’s why listeners are being subjected to this list of nonexistent exceptions to the First Amendment. Langberg needs the public to believe hurtful, mean statements of opinion are actually unprotected by the Constitution.
When they make false statements of fact, that’s an abuse of that right.
No. It isn’t. It’s something not covered by the First Amendment. It isn’t an “abuse” of that right. Someone who steals a gun from someone’s house isn’t “abusing” his Second Amendment right to keep and bear arms. He’s a thief, not someone who acted irresponsibly within the confines of that right. Langberg is trying to paint protected and unprotected speech the same shade of gray.
On top of that, Langberg keeps steering the conversation away from who he’s actually arguing for — Wynn Resorts, a large corporation with a litigious background. He claims it’s small businesses that will be hurt the most by the loss of the option to file bogus lawsuits. He continually asserts that the gutted, stripped law will also effectively deter frivolous lawsuits.
But his arguments against the existing anti-SLAPP lawsuit are contradictory. He says the stringent evidentiary standards will result in possibly legitimate cases being tossed out on “day one,” with the plaintiffs being saddled with the defendant’s legal fees — something that could put these supposed “small businesses” out of business. Really? If suits can be tossed “before discovery, before a jury trial,” as Langberg describes it, then there certainly can’t be much in legal fees amassed by the point the court tosses the case.
Beyond that, Langberg overstates the law’s current demands in terms of the level of proof needed to follow through on a defamation suit. Langberg portrays it as an almost-insurmountable obstacle of “clear and convincing evidence.” As Marc Randazza points out later, the current statute demands no such thing.
Our current statute just requires the plaintiff to prove a “probability of prevailing.” Not “most likely.” A “probability.”
If you can’t get over that and you’re a licensed attorney, why are you putting your signature on that complaint?
Good question. Langberg would apparently like to be applying his signature to more complaints, but state law sets the bar too high. Langberg isn’t quite the First Amendment fan he portrays himself as. He’s a fan of his version of the First Amendment. Unfortunately for him, the state’s current anti-SLAPP law won’t allow him to fully exercise his interpretation of other people’s rights.