Rachel (not her real name) was too scared to report her rape to the police. She was also too scared to walk around the campus that she was traumatized on, so she dropped out of school. After taking a year off to recover, she decided to talk about her experience. She told her story to the local TV station. Other women contacted her to share their stories. Rachel felt like she was finally on the other side.
Then she received a lawsuit. Rachel was being sued for defamation by her rapist. As a 19 year old, she had no idea what to do. Her parents did not have the money to hire an attorney. She couldn’t afford the suit, much less the amount of money her rapist was suing her for. She began to fall back into the depression she had just escaped.
This story is all too familiar for women who have spoken out about their experiences. In recent (post #MeToo-era) years, defamation lawsuits have been popping up all over the country. The type of lawsuit that this situation describes is called a SLAPP suit (Strategic Lawsuit Against Public Participation). The primary goal of these lawsuits is to censor or silence someone so they will stop talking about something that is within the public interest — directly stomping on someone’s free speech rights.
Usually, filing a SLAPP is quite an effective strategy because a defendant in these cases has to get an attorney, figure out how to respond in 30 days, or try to settle the case to get it to go away. It also has another impact — silencing those who may want to speak out in the future, or were considering it. For rape victims, this compounds the trauma they have already experienced; they’re now being charged for their rape by their rapists. Add that bill to the therapy, potential hospital costs, and lost tuition. It can be crushing.
Defamation suits
Defamation suits filed for their intended purpose are easy to understand — someone tells a lie about another, it is damaging to the aggrieved party, and there is reason to believe the person did it knowing it was a lie. In those cases, the aggrieved person can be properly compensated by the damage done.
In North Carolina, this type of lawsuit just hit the news last week as Lt. Gov. Mark Robinson filed a defamation lawsuit against CNN and Louis Money for two separate articles about him that hurt his reputation and his chances to become North Carolina’s first black governor. In CNN’s case, it is likely easiest to settle the lawsuit and not pay the hourly rate for their attorneys to respond, appear in court, and fight the case. The suit provides no exculpatory evidence that Robinson did not do the things the CNN article claims — and he would be unlikely to win the suit if it made its way through the court system.
The burden of proof in one of these cases is high for plaintiffs who are public figures. Robinson has to prove that the information was false and that CNN published the story knowing that. CNN’s other option would be to move to dismiss the case, but this also comes with costs. Shockingly, Mr. Money (the other defendant stemming from an article in the Assembly) lawyered up and filed a motion to dismiss before CNN. All parties will have to continue to pay legal fees for that hearing, and it could get much more expensive if the case makes its way to discovery, which will require hours and hours of legal work and digging for all parties.
What’s different in a motion to dismiss?
The burden of proof in a defamation case rests with the defendant, who has to prove that the plaintiff has failed to state a claim upon which relief can be granted. In Robinson’s case, the motion to dismiss hinges on a specific North Carolina rule violation (seeking $50M in damages). Since this motion has been filed, Robinson and his legal team have amended their lawsuit — making it unlikely that Money’s motion will be granted. If a motion to dismiss were granted, in North Carolina, it is not a sufficient reason for a court to award attorney’s fees to the winning party. However, a court may consider a motion to dismiss as evidence when deciding whether to award attorney’s fees.
Anti-SLAPP laws, on the other hand, work to protect our First Amendment rights by shifting the burden to the person suing — forcing them to show why this lawsuit is necessary. When an anti-SLAPP motion is filed, it automatically stays discovery in the case (a very invasive and time intensive process). In an expedited SLAPP hearing, the judge hearing the motion will consider whether the speech is protected under the SLAPP statute, whether the plaintiff will prevail on the claim, and whether any defenses apply. If a judge decides that the case is a SLAPP case, they then award attorney’s fees to the prevailing party.
What’s the solution?
Thirty-four states and the District of Columbia have anti-SLAPP laws on the books. North Carolina has a General Statutes Commission that reviews and recommends different uniform laws drafted by the Uniform Law Commission. In recent legislative sessions, a bill has been introduced from that committee to combat these suits and make it easier to dismiss these types of suits.
SLAPP cases often have an imbalance of power — the one bringing the suit often has the money and weight to censor their critics — but an anti-SLAPP law provides a needed balance and gives judges an extra tool to ensure free speech is protected and court resources aren’t wasted on frivolous suits.
North Carolina should pass House Bill 144, or a variation of it, so that victims — or even adversaries — are no longer silenced.