CONTENTS INTRODUCTION I. WHAT ARE ANTI-SLAPP LAWS A. Procedural Structure of Anti-SLAPP Laws B. The Uniform Public Expression Protection Act (UPEPA) C. Circuit Split Regarding Applicability of Anti-SLAPP Laws in Federal Court II. A CLOSER LOOK--NEVADA AND TEXAS A. Nevada B. Texas III. OHIO A. Ohio's 2017 Anti-SLAPP Bill 1. Structure of the OCPA 2. Protection of Anonymous Online Posters B. Ohio's 2019 Anti-SLAPP Bill C. Ohio's 2024 Anti-SLAPP Bill IV. WHAT SHOULD AN ANTI-SLAPP LAW LOOK LIKE IN OHIO A. Adopt a Three-Step Rather than a Two-Step Framework B. The Plaintiff's Burden Should Be, at Most, "Clear and Specific Evidence," Not "Clear and Convincing Evidence " C. Include a Provision that Immunizes SLAPPed Defendants from Civil Action D. Incorporate Three Key Provisions from Previous Ohio Anti-SLAPP Bills 1. Mandatory and Discretionary Fee-Shifting 2. Discovery Stay 3. Right to Appeal E. Keep S.B. 206 and S.B. 215's Definition of "Protected Communication" F. Do Not Expand the Number of Exemptions G. Expand Scope of Availability of Anti-SLAPP Motion to Include Claims Brought Against a Person Based upon "or in Response to" a Protected Communication H. Include Protections for Anonymous Speakers CONCLUSION
INTRODUCTION
On the evening of August 11, 2012, Steubenville High School students sexually assaulted a sixteen-year-old girl and documented the assault on social media. (1) One student, Cody Saltsman--who happened to be the victim's ex-boyfriend--posted a picture of the victim on Instagram, depicting two students carrying her unresponsive body by her wrists and ankles. (2) Shortly thereafter, Alexandria Goddard and various anonymous posters discussed Saltsman and the other students on Goddard's blog. (3) In response, Saltsman and his family sued Goddard and the other anonymous posters for defamation. (4) When the case settled on December 27, 2012, Saltsman, not Goddard, was required to apologize. (5) Goddard shared Saltsman's statement on her blog:
I deeply regret my actions on the night of August 11, 2012. While I wasn't at the home where the alleged assault took place, there is no doubt that I was wrong to post that picture from an earlier party and tweet those awful comments. Not a moment goes by that I don't wish I would have never posted that picture or tweeted those comments. I want to sincerely apologize to the victim and her family for these actions. I also want to acknowledge the work of several bloggers, especially Ms. Goddard at Prinniefied.com, in their efforts to make sure the full truth about that terrible night eventually comes out. At no time did my family mean to stop anyone from expressing themselves online--we only wanted to correct what we believed were misstatements that appeared on Ms. Goddard's blog I am glad that we have resolved our differences with Ms. Goddard and that she and her contributors can continue their work. (6)
The ACLU of Ohio categorized Saltsman v. Goddard (7) as a classic Strategic Lawsuit Against Public Participation (SLAPP) suit, where the Saltsmans did not have a meritorious defamation claim but instead wanted to silence both Goddard's and the anonymous posters' protected speech. (8) The very purpose of SLAPP suits is to intimidate and silence speakers:
Because SLAPPs inherently have, in theory, no chance of prevailing in court, filers bring them not to remedy a wrong but to interfere with the First Amendment rights of targeted individuals. Their goal is to force targets into costly litigation that reduces or prevents their current and future involvement in public discourse. (9)
It's true that the Saltsmans' case against Goddard was dismissed and settled in Goddard's favor. (10) But if Ohio had passed either the 2017, 2019, or 2024 version of its anti-SLAPP bill (11) at the time, the court would have required the Saltsmans to pay Goddard's reasonable attorney's fees and court costs. (12) Additionally, under the 2017 and 2019 Ohio anti-SLAPP bills, the court could have further required the Saltsmans to pay Goddard "such punitive or exemplary monetary sanctions as the court finds sufficient to deter the filing of similar actions in the future." (13) Without an anti-SLAPP law, wrongfully sued defendants must request attorney's fees from the court and are entitled to recover them only if they meet certain requirements. (14) Plus, because courts have tremendous discretion in awarding sanctions, it is difficult to determine if the court will award sanctions should the wrongfully sued move for them. (15)
SLAPP suits, which either force defendants to (1) spend an exorbitant amount of money to defend themselves, or, if they can't afford the costs of litigation, (2) settle, which creates a chilling effect on speech, (16) have led the majority of states to enact anti-SLAPP laws that provide wrongfully sued parties a means to escape SLAPP suits early. (17) In both 2017 and 2019, two separate versions of Ohio anti SLAPP legislation did not succeed. (18) But on March 26, 2024, a third version of Ohio anti-SLAPP legislation was introduced in the Ohio Senate as Senate Bill 237. (19) Although Senate Bill 237 is flawed, this third attempt of anti-SLAPP legislation suggests that Ohio might finally be ready to join the majority of the country and pass an anti-SLAPP law.
This Comment, therefore, proposes that Ohio finally adopt an anti-SLAPP law. Part I of this Comment examines anti-SLAPP laws generally and the Uniform Public Expression Act (UPEPA), (20) which is a uniform act that provides a model anti-SLAPP statute that states can pass as part of their anti-SLAPP legislation. Part II of this Comment explores two jurisdictions' anti-SLAPP legislation--Nevada and Texas--because the previous drafts of Ohio's anti-SLAPP bill were partly modeled on their provisions. Part III explores the history of Ohio's anti-SLAPP efforts. Finally, Part IV provides recommendations about what Ohio's anti-SLAPP law should include.
I. WHAT ARE ANTI-SLAPP LAWS?
In 1988, Professors Penelope Canan and George Pring recognized that "every year in the United States, hundreds, perhaps thousands, of civil lawsuits are filed that are aimed at preventing citizens from exercising their political rights or punishing those who have done so." (21) Canan and Pring labeled such lawsuits as SLAPPs--"strategic lawsuits against public participation." (22)
The filers of SLAPP lawsuits do not bring any meritorious claims--rather, they file the SLAPP suit with an objective to silence or intimidate someone whose exercise of their First Amendment rights has negatively affected the filer. (23) And SLAPP suits are not exclusive to defamation--a SLAPP suit might involve claims of defamation, invasion of privacy, nuisance, conspiracy, or other claims that really seek to prohibit the defendant from engaging in constitutionally protected activities. (24)
SLAPP suits like this have been recognized since the early 1980s. (25) Oftentimes, they occur when an aggrieved politician or public figure reacts to a negative story that someone has publicized about him or her and files a frivolous lawsuit--usually for defamation--in retaliation. Generally, the filer of the suit knows that she doesn't have a claim but seeks to silence the speaker. In response, the wrongfully sued will either (1) expend exorbitant costs on litigation in an effort to defend themselves or (2) settle the case, which has a chilling effect on speech.
Take, for example, Trump v. O'Brien, (26) where Donald Trump sued a book author and publishers for $6 billion because the book alleged that Trump was "'only' worth between $150 to $250 million." (27) The court granted the defendants' motion for summary judgment because Trump could not meet the required standard of proof that the defendants had spoken with knowledge of falsehood or reckless disregard for the truth. (28) But if New Jersey had an anti-SLAPP law in effect at the time the case was filed, the defendants could have filed a special motion to dismiss the case, stay discovery, and recover their attorneys' fees--all of which would have saved time and money. (29) But here, the defendants had to proceed through expensive dispositive motions and lengthy discovery. (30) The majority of wrongfully sued defendants do not have the financial means to defend themselves against frivolous suits and will instead settle the case. (31)
In filing the suit, Trump stated, "I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I'm happy about." (32) This is a prime example of when "a SLAPP-filing party 'expects to lose and is willing to write off litigation expenses' as 'merely a cost of doing business.'" (33)
Murray v. Chagrin Valley Publishing Co. (34) is another example from Ohio. After Robert Murray, an Ohio business mogul, fired 156 employees the day after the 2012 presidential election, Patriots for Change held an organized protest outside of Murray Energy, and a reporter for the Chagrin Valley Times interviewed protestors. (35) In January 2013, the newspaper published an editorial about Murray, and included a cartoon that "unfavorably depict[ed]" him. (36) Murray sued the newspaper for defamation, and the trial court granted summary judgment in favor of the defendants. (37) Murray appealed to the Eighth District Court of Appeals of Ohio, which affirmed the trial court's holding. (38)
The court recognized that Murray's defamation suit accomplished the chilling effect that SLAPP suits strive for, since the newspaper completely removed all mention of Murray and the protest. (39) The court called for Ohio's adoption of an anti-SLAPP statute. (40)
Nearly six years after Murray was decided, Lisa Ciocia, one of the Patriots for Change protestors, testified before the Ohio Judiciary Committee and urged them to pass Ohio's anti-SLAPP bill. Ciocia explained how Robert Murray also sued her and her husband for $22 million...
