While Congress still can’t get its act together to pass an anti-SLAPP law, the Ohio legislature has stepped up and done so in the Buckeye state. Most of the reporting on this has noted that it passed unanimously, and the expectation was that Governor Mike DeWine would sign it, though his big list of bills signed late last week did not include this one.
Strategic Lawsuits Against Public Participation (SLAPPs) are frivolous lawsuits intended to silence critics by burdening them with legal costs. Anti-SLAPP laws allow such suits to be quickly dismissed, often with “fee shifting” such that the bringer of such a vexatious lawsuit also has to pay the legal bills of the wrongly sued defendant.
The bill itself, SB 237, looks decent enough. It appears to be modeled on the Uniform Law Commission’s anti-SLAPP model law, which is very strong. Other anti-SLAPP laws based on that model law have been passed in a handful of states and it’s becoming more of a standard for these types of laws. Just this year alone, Pennsylvania, Maine, and Minnesota have enacted similar anti-SLAPP laws based on the ULC model.
But still, without a federal anti-SLAPP law, there is always the risk that the law won’t apply in federal court. Federal Circuits have been all over the map in deciding if state anti-SLAPP laws can apply. The First and Ninth Circuits have said that you can use state anti-SLAPP laws in federal court, while at last check, I believe the Second, Fifth, Tenth, Eleventh, and DC Circuits have all said you cannot (though this has changed over time, as I believe the Second and Fifth Circuits flipped positions from “allow” to “don’t allow” at some point).
Ohio is in the Sixth Circuit and in poking around, I don’t see that the Sixth Circuit has weighed in on this yet, so it may remain an open question.
Ohio’s passage of SB 237 is an important victory for free speech at a time when some politicians and public figures are eagerly seeking to expand defamation laws to silence critics. While questions remain about its applicability in federal court and the lack of a federal anti-SLAPP standard, this law should provide crucial protections for Ohioans against frivolous lawsuits intended to chill public participation (assuming DeWine gets around to signing it). Hopefully more states, and eventually Congress, will follow suit in defending the First Amendment rights of all Americans.
Indeed, with a bunch of new states passing state anti-SLAPP laws, this could actually present a real bipartisan win for free speech to pass a federal anti-SLAPP law. We just need the folks leading the Republican party to stop wanting to sue every minor critic.
