A little-noticed House Judiciary Committee hearing in December brought together conservative and liberal lawmakers on the issue of how to prevent lawsuits that have the objective of preventing free speech and discouraging public participation-- so called SLAPP suits.

The hearing was on House Bill 95 sponsored by Rep. Russ Diamond (R-Lebanon) and Senate Bill 95 sponsored by Sen. Lawrence Farnese (D-Philadelphia) who are normally at almost opposite ends of the political spectrum.

On the issue of SLAPP suits, however, their legislation is, in fact, identical.

Why The Bill Was Introduced

When he introduced the bill in January 2019, Rep. Diamond said, “... I plan to introduce the Free Speech Protection Act, aimed at preventing our court system from being abused by powerful actors who seek to bully Pennsylvanians into refraining from exercising their First Amendment rights.

“Specifically, this legislation would add a provision to Title 42 to allow for a swift motion to dismiss a SLAPP (Strategic Lawsuits Against Public Participation).

“SLAPPs are lawsuits filed against a person or organization for statements made, or positions taken, in connection with a matter of public interest or regulation. Some of the legal theories cited in SLAPP lawsuits are defamation, invasion of privacy, nuisance, malicious prosecution or abuse of process, conspiracy, intentional infliction of emotional distress and interference with contract or economic advantage.

“While all serve as valid reasons for legitimate litigation, in practice the true purpose of a SLAPP is to chill free speech and to deter or silence critics by burdening them with mounting a legal defense requiring the significant expenditure of time and financial resources, when the plaintiff knows they cannot prevail on the merits.

“Anti-SLAPP legislation has wide appeal and does not break down along political or ideological lines. Several other states-- including Texas and California-- have broad anti-SLAPP statutes.

“In 2000, Pennsylvania established limited protections from SLAPPs, but only in the narrow area of environmental law (Title 27 Chapter 83).

[Note: The Pennsylvania Environmental Immunity Act says, any person that “files an action in the courts of this Commonwealth to enforce an environmental law or regulation or that makes an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation shall be immune from civil liability in any resulting legal proceeding for damages where the action or communication is aimed at procuring favorable governmental action.”]

“Pennsylvania-- the Cradle of Liberty and the Birthplace of Independence-- must set the highest standard in the nation when it comes to protecting First Amendment rights. The Free Speech Protection Act will go far in accomplishing that.

When he introduced the bill in January of 2019, Sen. Farnese first thanked Sen. David Argall (R-Schuylkill) for co-sponsoring the bill and explained what led him to introduce the bill again this session.

“This legislation was first introduced after the Old City Civic Association in Philadelphia, a 40-year-running community organization, was forced to shut its doors due to its inability to obtain insurance because of several SLAPP lawsuits.

“After the Senate Judiciary Committee held a hearing on SLAPPs in April 2014, it became clear that there were victims of SLAPPs across the Commonwealth. Citizens, community groups and other stakeholders testified to the insurmountable emotional, mental and financial effects SLAPPs can have on individuals and organizations.

“In addition, there is a fear that SLAPPs may be used to devastate the #MeToo movement, as those victimized by sexual harassment may face the prospect of these suits being used as a way for harassers to shield disclosure.”

Similar legislation passed the Senate in 2015-16 by a 48-1 vote, and again in 2017-18 by a 42-8 vote.  Both House Bill 95 and Senate Bill 95 are still in their respective Judiciary Committee.

Committee Hearing

At the House Judiciary Committee hearing on December 16, witnesses representing  groups like the conservative Americans for Prosperity, the PA NewsMedia Association, the PA Bar Association, the Public Participation Project and others all supported the bill.

Billy Easley, Americans for Prosperity, said, “AFP endorsed the Free Speech Protection Act because it protects the free speech rights of Pennsylvania citizens from frivolous lawsuits designed to silence them.”

“The First Amendment protects the people from government restrictions on their speech. The public and policymakers must always remain vigilant against government erosion of free speech rights. However, in recent decades we've seen private individuals and companies abuse our legal system to restrict speech, especially with the adoption of the internet.”

“The threat of costly, long-term litigation has been routinely used to silence whistleblowers, journalists, political protestors, even victims of sexual assault around the country and here in Pennsylvania.”

Evan Mascagni, Public Participation Project, supported the bills saying, “I want to thank you all for considering this important piece of legislation and I hope that you quickly enact it to promote the constitutional rights of Pennsylvania's citizens and encourages their continued participation in public debate.

“Without a strong anti-SLAPP law in Pennsylvania, the legal bullies will continue to prevail.”

Melissa Melewsky, Media Law Counsel- PA NewsMedia Association, Our legal hotline receives approximately 2,000 inquiries a year, many of which deal with concerns about potential litigation resulting from news coverage, including threats of SLAPP litigation. It is not uncommon for news organizations to ask me to gauge the risk associated with an article and to estimate the cost of a SLAPP lawsuit.

"... PNA supports Rep. Diamond and Senator Famese's proposals to broaden the scope of Pennsylvania's anti-SLAPP statute to expand the class of defendants who may seek dismissal of retaliatory, bad-faith litigation and protection from the financial and emotional toll that SLAPP suits take on defendants."

Thomas G. Wilkinson, Jr., PA Bar Association, told the Committee, “Freedom of speech is under attack here and overseas, on college campuses and on the most popular social media platforms. SLAPP lawsuits are often filed not to achieve a favorable resolution on the merits, but rather to intimidate and discourage the targeted speaker(s) from speaking out, through the threat of costly and time-consuming litigation.

Quoting from a court opinion, Wilkinson said, “Speech on a matter of public concern occupies the highest rung of the hierarchy of First Amendment values, and is entitled to speech protection.”

“On behalf of the 25,000 members of the Pennsylvania Bar Association, we urge your support for the adoption of anti-SLAPP legislation that can act as important protection of the rights that encourage citizen participation in matters of public concern.”

Also presenting similar comments were, Michael Baughman, Pepper Hamilton, LLP, Michael Berry, Ballard Spahr, LLP and Joshua Bonn, Nauman, Smith, Shissler and Hall, LLP.

Robert Richards, PA Center for the First Amendment and David Kairys, Beasley School of Law, Temple University presented written comments to the Committee.

Rep. Rob Kauffman (R-Franklin) serves as Majority Chair of the House Judiciary Committee and can be contacted by calling 717-705-2004 or send email to: rkauffma@pahousegop.com.  Rep. Tim Briggs (D-Montgomery) serves as Minority Chair and can be contacted by calling 717-705-7011 or send email to: repbriggs@pahouse.net.

Other Attempts To Stifle Public Speech

Since 2017, there have been several attempts to discourage public expression of opposition against pipelines and other facilities by increasing the penalties for trespass and making protesters responsible for the cost of a police response.

On October 7, Sen. Mike Regan (R-Cumberland) introduced Senate Bill 887 establishing penalties for a new category of trespass violation for “critical infrastructure” that automatically makes trespass a felony punishable by up to 1 year in jail and a fine of not less than $5,000 for a first offense.

Specifically, the bill says an individual commits an offense if they do the following (it’s listed first)--  “Enters or attempts to enter property containing a critical infrastructure facility, knowing that the person is not licensed or does not have the permission of the owner or lawful occupant of the property to do so.”  Click Here for more.

Similar legislation-- Senate Bill 652 (Regan)-- passed by the Senate last session and was considered by the House, but not given final action. Click Here for more.

The bill is now in the Senate Judiciary Committee.

A companion bill-- Senate Bill 323 (Martin-R-Lancaster)-- which would make protestors responsible for the public costs of responding to demonstrations and trespass, was also reintroduced.

Sen. Martin introduced similar legislation-- Senate Bill 754-- in 2017 after the Dakota Access Pipeline protests, but the bill did not see any Senate action.  Click Here for more.

This bill is also in the Senate State Government Committee.

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[Posted: January 19, 2020]

1/27/2020