A lesson for Ohio from Donald Trump: Fill the void to protect against anti-speech lawsuits

“Trump litigation” has long been plural, and it’s tough to keep track.

The May 9 jury verdict that Donald Trump abused and defamed writer E. Jean Carroll is more than a historic #metoo moment. As we process this front page news, let’s not overlook the outcome of yet another Trump lawsuit that highlights the importance of protection against litigation intended to chill free speech.

Such lawsuits have a curious acronym: SLAPP (not a verb).

SLAPP stands for strategic lawsuit against public participation, a tool to silence and-or intimidate criticism through costly legal proceedings. The idea is for the usually rich and-or powerful SLAPP such suits on anyone who criticizes them, silencing the speaker and bogging them down in court.

On May 3, a judge in New York dismissed Trump’s most recent lawsuit against The New York Times and three of its reporters, citing the New York State anti-SLAPP law designed to quickly resolve such strategic litigation. The Times had won a Pulitzer in 2018 for stories detailing how Trump made hundreds of millions through “dubious tax schemes.”

As of April 2023, 32 states and the District of Columbia have anti-SLAPP laws, says Reporters Committee For Freedom of the Press. Ohio is not one of them.

An outlier, Ohio should plug this statutory hole to ensure speech is free for all – not just the rich, powerful and lawyered up. Anti-SLAPP laws protect debate at zoning hearings, complaints about medical care, criticism of public officials, environmentalists speaking out on behalf of the environment, activists criticizing the police, just to name a few.

The Trump lawsuit against The New York Times offers compelling fresh evidence to support anti-SLAPP protections. The narrative of this case is worthy of a plot line of the HBO hit show Succession. Trump sued The Times and his niece, Mary L. Trump, who gave his financial documents to the newspaper. He sought $100 million for “tortious interference,” saying that the Times caused Mary Trump to break her confidentiality agreement in a prior lawsuit involving their inheritance money.

(Succession writer Jesse Armstrong: “For people who come from powerful families, there is nothing in life quite as interesting as being at court.”)

Niece Mary Trump provided tax and financial documents to The Times, which published a lengthy unflattering report in 2018.

Justice Robert R. Reed (Supreme Court of the State of New York, County of New York: Commercial Division) tossed Trump’s claim against The Times and its reporters, noting that it’s not just abusive libel suits that need to be SLAPPed down. (Trump didn’t file a libel suit in this case because as plaintiff, he would have to prove what the Times wrote was false. He didn’t want to go there.)

The court said:

• The First Amendment protects news gathering from fear of tort liability
• Trump’s claims “plainly constitute a strategic lawsuit against public participation”
• Under New York State law, The Times and its reporters are entitled to recover legal expenses (to be paid by Trump)

In 2020, the New York Legislature broadened the State’s anti-SLAPP law to make it easier for defendants to obtain dismissals.

The new law requires courts to broadly construe the term “public interest” to cover cases involving “any communication in a place open to the public or a public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest.”

Ohio Senate President Matt Huffman of Lima introduced anti-SLAPP legislation in 2019 (Senate Bill 215), and remains supportive of enacting anti-SLAPP protection.

The worthy goal of safeguarding against strategic lawsuits intended to chill speech and criticism does not mean that legitimate grievances can’t be decided in court. Dismissing baseless, frivolous claims enables courts to focus on serious matters.

Ohio should join the majority of states that enacted laws to disincentivize SLAPP lawsuits.