Op-Ed: Scorched Earth Litigation: The Anti-SLAPP Call Can Save You – Columbia Journalism Review | Team Cansler

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After six years After protracted litigation, three years of scorched earth discovery, and $4 million in legal fees, our nonprofit newsroom Reveal of the Center for Investigative Reporting (CIR) can finally breathe a sigh of relief knowing that the oldest nonprofit newsroom in the country will survive to break news Stories for another year.

This week, the parties finally settled the remaining issue in the Planet Aid v. CIR case, a defamation lawsuit filed against our editors six years ago: attorneys’ fees. After CIR won on the merits in a federal appeals court earlier this year, the plaintiff agreed to dismiss the case and pay $1,925,000 in attorneys’ fees (paid to CIR’s insurer and attorney), possibly the largest attorneys’ fee settlement , which was scored in a case like this one.

This notable victory was due in large part to California’s anti-SLAPP law, and the court found that the plaintiffs were public figures who had failed the defamation standard. California is considered one of the strongest anti-SLAPP laws alongside New York, allowing lawsuits to be dismissed quickly out of court and allowing attorneys’ fees designed to deter annoying lawsuits.

As the Court of Appeals explained, “California law provides for the pre-trial dismissal of certain lawsuits known as Strategic Lawsuits Against Public Participation, or SLAPPs, which masquerade as ordinary lawsuits but are intended to prevent ordinary people from exercising their political or legal options rights or punish them for it.”

Victory came just as CIR, the oldest in the country, celebrated its 45th anniversary – but our jubilee might as well have been a lament as we could barely muster the financial and psychological costs of the past six years. Back in August 2016, Planet Aid and its associate Lisbeth Thomsen sued CIR after it published a story and radio show about Planet Aid.

During CIR’s 18-month investigation, our journalists traveled across continents to uncover a hidden story behind Planet Aid’s use of government funds to support rural African communities. It also investigated the organization’s alleged links to a cult leader who was prosecuted for charity fraud.

Although Planet Aid declined an in-person interview and a response to comment on a seven-page findings document (based on thousands of documents, interviews, and named sources), it chose to single out and sue CIR to pursue our most fundamental right: freedom of the press . While several other newsrooms including the BBC (which worked with Reveal), NBCU, the Los Angeles Times and the Chicago Tribune had written similar stories, CIR and its reporters were the only accused.

While the lawsuit nearly bankrupted our coffers — possibly killing thousands of investigative reports — we were fortunate to have the honorary support of dozens of attorneys from Davis Wright Tremaine and Covington and Burling. Unfortunately, this story is not unique.

Around the world, lawsuits from oligarchs and angry politicians are raising new questions about protecting free speech, especially for smaller newsrooms and individual journalists.

Last year, investigative journalist Carole Cadwalladr closed a similarly vexing libel case brought against her by British businessman Arron Banks (and didn’t credit The Guardian – for whom she works).
In response to this wave of SLAPP lawsuits in Europe, a group called Daphne is inspiring an anti-SLAPP movement across the continent, pushing for legislation.

Similarly, here in the United States, just last month Rep. Jamie Raskin (D-MD) sponsored the SLAPP Protection Act of 2022 (HR 8864), a United States federal law in Congress that would allow targeted speakers to be quickly fight the back. The fact that CIR barely made it off the operating table despite California’s anti-SLAPP law shows that these solutions are badly needed. In July 2018, CIR filed a special strike motion under California’s anti-SLAPP law. Even with California’s beefy law – we barely survived due to multiple tactics.

First, Planet Aid spent nearly two years trying to file the lawsuit in Maryland, which has one of the weakest anti-SLAPP statutes in the country. After the court moved the case to California, Planet Aid tried two more times to move the case back to Maryland.

Second, the court allowed full disclosure for two years – cleaning out the insides of our investigations, reviewing hundreds of hours of records and hundreds of thousands of documents that in many cases required translation. Luckily, our reporters Matt Smith and Amy Walters did their homework. Generally, anti-SLAPP laws do not allow disclosure, but federal courts require it (which is costly and lengthens litigation). Under this rule, Planet Aid was able to handle dozens of Discovery requests on thousands of newsrooms, depose CIR’s editorial staff, require disclosure of source material from journalists, and initiate over a dozen Discovery disputes that lasted for years of litigation and cost millions of dollars.

While this disclosure may be required in federal court, CIR has not been given the same ability to issue disclosures on Planet Aid, something the anti-SLAPP laws should allow. Fortunately, in March 2021, the district court granted CIR’s anti-SLAPP motion. Planet Aid, Inc. vs. Ctr. for Investigative Reporting, №3:17-cv-03695, 2021 WL 1110252 (ND Cal. March 23, 2021). And on August 11, 2022, the Ninth Circle upheld the decision.

Still, these types of costs can have catastrophic effects, as Margaret Sullivan wrote in an April 2021 story after CIR won its case in district court. Federal courts across the country are increasingly finding that state anti-SLAPP statutes like California’s should not apply in federal courts.

This is of particular concern – as nonprofit newsrooms are growing across the country as they fill the hole in a decimated local news landscape. Last year, Poytner saw a record number of nonprofit newsrooms set up during the pandemic to cover stories and communities that would otherwise go unseen. These institutions are particularly vulnerable to SLAPPs.

And while lawsuits against the press aren’t unique in some ways, one thing about them is this: The incredible volunteer work of Davis Wright Tremaine and Covington and Burling was rare and saved our editors. DWT’s Thomas Burke led the case from the filing of the complaint and Simon Frankel was responsible for CIR’s surviving the discovery. But journalism should not hang by the thread of law firm generosity. And journalism isn’t the only thing at stake. As Rep. Jamie Raskin recently said on Twitter, “Anti-SLAPP legislation is necessary to deter large corporations from crushing civil society activism.”

If this can happen to us, it can happen to anyone. Therefore, a federal anti-SLAPP law should be supported. As the federal court explained in our case, the Supreme Court has long enshrined “a deep national commitment to the principle that debate about public affairs should be uninhibited, robust, and wide-open, and that it can involve quite violent, acidic, and at times uncomfortable.” sharp attacks on government and officials” and “public figures”. That’s what anti-SLAPP statutes protect, the “breathing space” to chill constitutionally valuable speech.

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Viktoria Baranezki

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