By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):
In 2019, Tennessee’s free speech law underwent a sea change. The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts. Due to a recent decision out of Hamilton County, the constitutionality of the TPPA has now been expressly affirmed. After nearly two years, it is also clear that the TPPA is working as intended “to encourage and safeguard the constitutional rights of persons to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law. . .” See Tenn. Code Ann. § 20-17-102.
Bedsole v. Sinclair Broadcast Group, Inc. is a defamation lawsuit concerning the TV show “Tiny House Nation.” After being sued, the defendants in that case raised claims for dismissal under the TPPA. In response, the plaintiff asserted that the TPPA was unconstitutional in its entirety based on the Tennessee Constitution’s separation of powers doctrine. Thus, in late February 2021, the Hamilton County Circuit Court held a hearing on the contested constitutionality of the statute.
There are, of course, several immediate problems with any broad claim that the Tennessee Public Participation Act is “unconstitutional.” To begin, the TPPA is a collection of statutory provisions, not a single statute. It has many different features—an automatic stay on discovery provision, fee-shifting and discretionary sanctions provisions, an interlocutory appeal provision, and several other provisions—all of which function independently. Several of those provisions also are not even theoretically unconstitutional, and there is no serious argument otherwise. More generally, anti-SLAPP statutes like the TPPA—which is narrowly tailored to preserve judicial discretion—also promote compelling public interests and serve as an essential tool to protect the oft-ignored rights of third parties.
Upon review, the Hamilton County Circuit Court issued a short but forceful ruling affirming the TPPA’s constitutionality. “The TPPA, at least in the eyes of this Court, is clearly predicated upon public policy concerns,” the Court explained. “There can be no serious questions that the intent of the legislature in passing this statute was to effect a more beneficial public policy.” Further, “the over-arching purpose of the statute”—“to provide protection to [Tennessee’s] citizens from SLAPP lawsuits”—“do[es] not mandate any particular result but leave[s] the ultimate decision within the discretion of the trial court.” Indeed, the Court noted, “the statute actually broadens the court’s authority to move past the very low requirements of Rules 8 and 12, and to impose attorney’s fees following a burden shift not previously available to the litigants.” Thus, the Court held, “the constitutional challenge of the Plaintiff is DENIED.”
To be sure, this ruling is excellent news for anyone who cares about free speech in Tennessee. Before the TPPA was enacted, bad actors could credibly threaten to impose tens—if not hundreds—of thousands of dollars’ worth of litigation expenses in SLAPP-suits over a period of several years if their baseless retraction or other demands were not met in legally frivolous speech-based tort cases. That is no longer true, given the very real possibility that a plaintiff who files a SLAPP-suit will be ordered to pay the other side’s legal fees and could potentially be sanctioned. The end result is that negotiating power has flipped, outcomes have dramatically improved, and any number of SLAPP-suits have been avoided entirely because plaintiffs were not willing to risk the severe consequences associated with filing one. Speech defense attorneys (like the author) are also able to defend against SLAPP-suits on a contingent basis now, rather than having to do so on a pro bono basis when a defendant cannot afford to pay for a vigorous defense.
The evidence that the TPPA is working as intended is also indisputable at this juncture. To date, TPPA petitions have been granted in four total cases:
- This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
- This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
- This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
- This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).
The TPPA has also resulted in prompt, favorable settlements to defendants before hearing, provided a backstop in cases that were ultimately dismissed on other grounds, and—this author can attest—has been utilized extensively in pre-suit correspondence to ward off litigation in the first place.
Why, specifically, is the TPPA so effective? The answer is “for several reasons,” but the following three changes are instructive:
1. Prior to the TPPA being enacted, no matter how much money a plaintiff forced a defendant to spend on legal fees in order to defend against a bogus SLAPP-suit, a prevailing defendant’s ability to recover his or her legal expenses after securing a dismissal and then upholding the dismissal through appeal was capped at $10,000.00. That is no longer the case, because under the TPPA, defendants who are subjected to baseless SLAPP-suits can recover their full legal fees and be made whole after winning. That difference has also had enormous practical consequences when it comes to negotiating power and settlement leverage, and it enables rapid dismissals by agreement in cases that might otherwise have lasted years.
2. Prior to the TPPA being enacted, plaintiffs could impose massive litigation costs and expenses and subject defendants to intrusive discovery simply by making baseless allegations that they did not have to substantiate with evidence until much later in a case. That is no longer true, either, because the TPPA allows defendants who are subjected to speech-based lawsuits to force plaintiffs to come forward with admissible evidence to substantiate their claims immediately. If a plaintiff cannot or does not do so, the plaintiff’s lawsuit will be dismissed with prejudice, and the plaintiff will be ordered to pay the defendant’s full legal fees.
3. Trial court judges make mistakes from time to time, and prior to the TPPA being enacted, an erroneous trial court ruling that a cognizable claim for defamation had been alleged could take years to correct—forcing defendants to go through intrusive and costly discovery or even a full-blown trial in the interim. As a consequence, an incorrect trial court ruling frequently had the effect of coercing defendants to settle baseless SLAPP-suits just to avoid the cost and stress of litigation. Now, however, defendants who are subjected to frivolous speech-based lawsuits have a right to take an immediate interlocutory appeal to the Court of Appeals and avoid such expenses by getting damaging trial court errors corrected early.
Even with the TPPA in place, of course, competently defending against defamation and other speech-based lawsuits remains a complex and expensive proposition that requires specialized expertise. Definitionally, the type of people who file SLAPP-suits—and the lawyers who take their cases—are also willing to abuse the legal process in order to censor, intimidate, and retaliate against critics, which means that such cases invariably involve unethical and abusive people as a matter of course. There are also a disturbingly large number of ways that the legal system can be abused successfully by bad actors and unethical people generally, so it remains important to have a competent speech defense lawyer who can effectively push back.
The good news, though, is that with the TPPA in place, litigants’ ability to impose legal consequences now goes in both directions. Plaintiffs who file SLAPP-suits can now be forced to pay very large sums of money to the people they have baselessly sued as well. As detailed above, that has happened already, and while certain gaps in speech-based protections remain, it will continue to happen as long as the TPPA remains in effect. This is good news for everyone who cares about the right to speak freely, as well as the right to hear what others have to say.
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