Law & Principles
Ray Carter | May 19, 2023
Bill could reduce transparency, fuel harassment lawsuits
Harassment lawsuits that target the free-speech activities of Oklahomans could become more common under a bill sent to the governor.
The legislation would weaken an existing state law that provides significant financial sanctions for individuals or entities that file frivolous harassment lawsuits to financially harm individuals engaged in free-speech activity.
A “strategic lawsuit against public participation,” commonly referred to as a SLAPP lawsuit, is typically filed to drain the financial resources of individuals and groups engaged in free-speech activity. Those filing the lawsuits seldom have a realistic expectation of a court victory but can use the lengthy court proceedings to cause financial harm to their public-policy opponents and deter them from engaging in public debate.
As a result, Oklahoma and a majority of U.S. states have “anti-SLAPP” laws that impose significant penalties on individuals or groups that file harassment lawsuits in an effort to deter free-speech activity.
The Oklahoma Citizens Protection Act, the state’s anti-SLAPP law, allows a defendant sued for defamation who wins a motion to dismiss by asserting a First Amendment privilege to not only recover costs and attorney fees from the entity that filed the harassment lawsuit, but also allows for the party that filed the harassment lawsuit to face a sanction “sufficient to deter the party who brought the legal action.”
House Bill 1236 removes the requirement for courts to impose those penalties on individuals filing frivolous lawsuits based on an opponent’s free-speech activities.
That would represent a significant step backward, based on one national ranking.
The Institute for Free Speech ranks Oklahoma’s current anti-SLAPP law among the best in the nation, noting the law “protects the exercise of the right of free speech, right to petition, and right to association.”
“Anti-SLAPP statutes are designed to address a structural problem within American law: namely, an unscrupulous litigant can use litigation strategically to suppress or punish speech he or she dislikes,” the Institute for Free Speech notes. “Such a litigant would typically claim that the speech constituted defamation and then sue others to harass them, silence them, or force them to bear significant litigation costs. Those who are faced with such a lawsuit … are often presented with a harsh choice – accede to the litigant’s demand for settlement (which may include paying compensation, ceasing criticism, and apologizing) or continue to bear heavy legal fees as the suit progresses. Either choice may entail substantial losses of speech, reputation, time, and money. These are costs defendants must bear even when faced with lawsuits that plaintiffs have a minimal chance of winning.”
The Institute says that strong anti-SLAPP laws like Oklahoma’s current law “encourage potential plaintiffs to think twice before hauling speakers into court with weak or frivolous cases.”
The Reporters Committee for Freedom of the Press notes, “SLAPPs have become an all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings.”
The Reporters Committee notes that strong anti-SLAPP laws, such as the one that currently exists in Oklahoma, “are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights. In terms of reporting, news organizations and individual journalists can use anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an enterprise or investigative story.”
Writing for the Nieman Journalism Lab in 2021, Peter Coe, a lecturer in law at the University of Reading, noted that SLAPP lawsuits were “increasingly being used by powerful people to shut down criticism from activists, academics, whistleblowers, and journalists.”
“SLAPPs are used to try to prevent the public from learning about matters of public interest that could harm the reputation of a company or government,” Coe wrote. “They typically take the form of defamation lawsuits, but very often the companies or individuals who start these claims know they will never win. Rather, the aim of the claim (what makes it a SLAPP) is to dissuade journalists from reporting on a controversial story by making it as costly and time-consuming as possible.”
Oklahoma’s anti-SLAPP law used to defend coverage of COVID-shutdown efforts
One of the more notable free-speech cases involving the Oklahoma Citizens Protection Act was a lawsuit, now entering its fourth year, filed by Paycom Payroll, LLC for defamation. The lawsuit relates to an article published by the Oklahoma Council of Public Affairs that briefly mentioned an open letter written by Paycom CEO Chad Richison in response to COVID-19. The suit was dismissed under the anti-SLAPP law, but the decision was ultimately reversed by the Oklahoma Supreme Court because the trial judge did not dismiss the suit within the 30-day timeframe outlined by the statute.
In his public letter released in March 2020, Richison called for temporary closure of a range of businesses, “which includes, but is not limited to, hair salons, nail salons, spas and massage parlors,” as part of the state’s COVID response. He also endorsed requiring grocery stores to provide “drive-thru pick up or delivery for all customers,” and mandating that undefined “critical” businesses be required to coordinate “with state government.” Richison also called on state government to mandate how “food preparation and other critical portions of the supply chain” are handled under undefined “newly established uniform standards to prevent transmission of the virus.” Richison also called for postponement of unspecified “elective surgeries” and endorsed having the government collect “all essential medical supplies” normally used for those surgeries or by “med spas and other medical organizations.” And Richison called for a ban on “all non-essential” travel from Oklahoma airports.
In a 2021 earnings call, Richison said the COVID-19 pandemic had financially benefited his company by prompting more businesses to use providers like Paycom.
Richison and Paycom have also been active in other issues that have prompted news coverage.
In August 2021, Richison released a statement calling for repeal of Senate Bill 658, which allowed parents to choose whether or not their children are masked at school.
In March 2022, Paycom provided $50,000 to fund a lawsuit that seeks to force the Oklahoma government to issue birth certificates listing genders other than “male” or “female,” and provided another $50,000 to an organization that opposes an Oklahoma law restricting women’s athletic events to biological females.
In a March 3, 2020, letter to the University of Oklahoma’s board of regents, Richison wrote that the university’s “previous diversity training efforts failed because they assured free speech protection” and announced Paycom was yanking advertising from the school.
In 2021, Paycom announced it was the lead sponsor for “Advancing Oklahoma,” a program described as “a lengthy conversation about race and race relations in Oklahoma” that ultimately featured speakers who declared there is “a very high correlation between the most racist attitudes in America and white evangelical Christianity,” endorsed “defund the police” efforts, and declared football games at the University of Oklahoma involve repeated “celebration of white supremacy.”
Examples of SLAPP lawsuits abound nationwide
Anti-SLAPP laws have been successfully used to defend against harassment lawsuits across the country.
The Reporters Committee for Freedom of the Press has compiled a list of many of those cases, including a Texas couple that was sued in 2016 for a negative Yelp review. The committee notes that without that state’s anti-SLAPP law, the couple “could have been tied up in court defending their right to speak about their experience with the company.”
In 2019, Justin Fairfax, who was then Virginia’s lieutenant governor, sued CBS for defamation after the station interviewed two women who accused Fairfax of sexual harassment. The station prevailed in court thanks to Virginia’s anti-SLAPP law, although that decision is now being appealed.
In Connecticut, a reporter was sued by a politician after the reporter wrote about the politician’s prior arrest for drunk driving. The reporter prevailed thanks in part to that state’s anti-SLAPP law.
In 2016, Oregon Right to Life and the Oregon Family Council sent out mailers that highlighted Rep. Matt Wingard’s past sexual relationship with an aide. Wingard sued both entities after he lost his primary. The two groups prevailed thanks to that state’s anti-SLAPP law.
The Reporters Committee for Freedom of the Press also notes how the lack of an anti-SLAPP law can harm free speech.
In 2017, the Derry News in Connecticut quoted comments made by Kevin Doyle, a former town counselor, on a public-access television program in which he referred to a local veteran as a “deadbeat dad.” Doyle sued the paper. The Reporters Committee noted, “Without any New Hampshire anti-SLAPP statute, the Derry News is left to defend its reporting on the public figure in lengthy court proceedings—and there is no guarantee that attorney’s fees could be recovered.”
In July 2017, the Carroll Times Herald in Iowa reported about the resignation of a local police officer, noting that the officer had previously been fired from another police department for inappropriate contact with an underage girl and reported that the officer had multiple affairs with underage girls in Carroll. When the officer sued for libel, the trial court dismissed the lawsuit, finding the newspaper’s reporting was “accurate and true, and the underlying facts undisputed.” However, the Reporters Committee for Freedom of the Press noted, “Nevertheless, the co-owner of the paper, Douglas Burns, set up a GoFundMe page to raise $140,000. Iowa currently does not have an anti-SLAPP law that could have protected the newspaper and their reporting.” Burns said the lawsuit costs had put the paper in financial peril.
HB 1236 currently awaits action from Gov. Kevin Stitt.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.