The coming SLAPPocracy

MSJ Exhibit Bajardi v Pincus:  elected official compiles a "list of occurrences"

“I spent a couple of bucks on legal fees, and they spent a whole lot more,” [Trump] told The Washington Post in March about the hefty sum he spent on the case against O’Brien. “I did it to make his life miserable, which I’m happy about.”

-Donald Trump NY Times Magazine-Nov. 22, 2016

That's President-elect Trump boasting that one of his seven libel suits was perpetrated in bad faith-  "I did it to make his life miserable"- the very definition of a SLAPP (Strategic Lawsuit Against Public Participation).   Trump lost that one and five more- only winning one libel suit when the Defendant failed to show up in court.

What does this portend for free online speech in the Trumpocalyse?

The Trumpocalyptic threat to "open up the courts on libel laws" is chilling.

Not only big media outlets have to worry; the most vulnerable and lowest hanging fruit are the "little guys" like MSV and GA.

Been there!  Done that!

click image to read

The little guys are the most vulnerable, and most easily picked off  by any wealthy public figure who wants to shut them up.  Such wealthy, powerful tyrants can freely use our courts to smite the pens of critics to punish them. These tryants may compile a list of occurrences where they felt others "lied" about them, future targets for a SLAPP-venture.  They may also SLAPP simply because it makes them "happy" to make the other guy's life "miserable"

What these enemies of free speech all have in common is resources; money is no object for the SLAPPer.

It all starts with a list.  In one famous list,  the Nixon administration pondered "how we can maximize our incumbency in dealing with persons known to be active in their opposition to our administration... how we can use the available federal machinery to screw our political enemies."

Watergate hearing Exhibit- cover page of Nixon's Enemies List' 'memorandum

A SLAPPer does not have to control the wheels of government in order to "screw" an enemy,  all it takes is (heaps of) money to file crushing litigation against him/her/them.

Which makes the Trumpocalyse and its "opened up" libel law a scary unknown.

GA fears the Trumpocalypse will open the floodgates of politically-motivated, bad faith litigation against journalists and other critics of the incoming Administration. 

Further, the identities of wealthy underwriters in a Trumpocalyptic wave of SLAPP suits against journalists, media groups, bloggers, etc., may be hidden behind proxies,  In other words, a SLAPP underwriter wishing to keep his/her hands clean may enlist proxies to litigate the bad faith suit against the free speech of enemies.

For example, an "ordinary couple."

This is a dire situation for Defendants, who invariably cannot match the resources of the SLAPP underwriter.

In many- not all, cases, Defendants will succumb to the will of the SLAPP underwriter, which is to go silent.

However, sometimes the proxies and underwriter diverge in their goals. When that happens, the litigation becomes more complicated and the outcome less certain.

For example, if a proxy wants to "get rich quick" and uses the pressure of excessive, punishing litigation (dozens of motions) to shakedown a Defendant for huge sums of money, if a proxy demands a giant payday under the threat of perpetual litigation, well, anything goes.  It all depends on the fortitude of the Defendant(s).

Hence, GA is not optimistic for the "little guy"  vs. the incoming Administration.  The ACLU is going to be very, very busy.

At the end of the day, whats important is to protect our constitutional right of free speech, to weather whatever comes and survive the Trumpocalyspe with our precious First Amendment rights intact.

The big and "little guys"must stay vigilant.

MSJ Exhibit  Bajardi v Pincus: targeting political speech in 2010