Proponents of legislation that would protect online speech are pushing for passage before members leave for the year, arguing it’s necessary to protect the integrity of information that consumers publish in online reviews.
“The beauty of the Internet is, you can go online and read customers’ honest reviews, whether on Amazon or Yelp or TripAdvisor,” Texas Rep. Blake Farenthold said in an interview with the Washington Examiner. “But if the big companies, or even some small companies, don’t like what you write in a review, they can sue you for tens of thousands of dollars, even if they’re going to lose.”
The Texas Republican is urging Congress to pass his legislation, the SPEAK FREE Act, by the end of the year. Short for Securing Participation, Engagement and Knowledge Freedom by Reducing Egregious Efforts, the bipartisan legislation would discourage so-called “strategic lawsuits against public participation,” or SLAPP suits, by authorizing their transfer from state to federal courts.
It would also allow defendants to file a special motion to dismiss that would be granted unless the plaintiff is able to demonstrate a reasonable likelihood of success.
Advocates of the proposal say that consumers writing reviews and the third-party websites hosting them have faced frivolous lawsuits for defamation or libel. Though the suits usually fail, reaching a conclusion can take years, and it results in high legal costs for the defendants.
One example includes that of a California attorney, Dawn Hassell, who claimed in 2013 that she was defamed by a client who published a negative review about her communication skills on Yelp.
Despite rulings in Hassell’s favor from a San Francisco judge and a state appellate court, the case is expected to return to the spotlight before Oct. 14, when the state Supreme Court is expected to overturn an order that Yelp remove the critical posts.
On the other hand, critics worry that a federal solution improperly usurps state authority, while imposing a standard on plaintiffs that is too burdensome. In testimony before Congress in June, Cardozo School of Law Prof. Alexander Reinert called the proposal “a statute that unconstitutionally expands the jurisdiction of the federal court” and “displaces state sovereignty.”
“It would require substantial amendments … to be both constitutional and an appropriate piece of legislation,” Reinert added.
Farenthold has nonetheless won support for his proposal from a bipartisan collection of congressional luminaries. Cosponsors include Reps. Anna Eshoo, D-Calif., Jared Polis, D-Colo., Darrell Issa, R-Calif., and Trent Franks, R-Ariz.
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Even with that support, Farenthold points out the bill could face an uphill battle if it fails to win passage by the end of the year. That’s because one of its most prominent potential critics, Donald Trump, is unlikely to support the bill. Hillary Clinton hasn’t taken a position on it.
“I think if SPEAK FREE is going to be enacted into law, it’s going to need to be enacted under President Obama,” Farenthold said. “He supports it. Donald Trump has six SLAPP suits himself that he’s filed. I’m a Trump supporter, but that’s one issue I don’t think we’re going to see eye-to-eye on.”
Still, Farenthold noted, in the event his proposal does not pass this year, he wouldn’t mind if the future president did see value in it. “It’s not going to change the libel law. All you’ve got to do is, early on, convince a judge that you have a reasonable chance of succeeding.”
