Janice A. Oser, Esq.

“I’ve got a BIG MOUTH!!” Ralph Kramden bellowed in “The Honeymooners,” when he got into trouble. In real life, some people may feel the same way when speaking up in public stirs up legal troubles. Others may choose to fight for their constitutional right to free speech. Either way, whether it’s a case of shooting your mouth off or rallying others to a just cause, it helps to know what might lie ahead.

One young man has been in the news as a result of being sued for defamation after venting online about a towing company. According to a New York Times article, Justin Kurtz, a college student in Kalamazoo, Michigan, created a Facebook page organizing a group against the company after the company had towed his car from the parking lot of his apartment complex, where he had a permit to park. The company made him pay to get the car back (“Venting Online, Consumers Can Land in Court,” by Dan Frosch, June 1, 2010).

Within two days, according to the article, 800 people had joined the Facebook group, and the lawsuit made Justin Kurtz a local celebrity. The group against the company had grown to more than 12,000 members at the time the article appeared.

The towing company sued for $750,000 in damages, claiming that the Facebook page was costing the company business and unfairly hurting its reputation. The company’s lawyer stated that the company was justified in hauling the car away because the permit was not visible. In his counterclaim, Kurtz alleges that company employees had disabled the battery alarm of his car and removed the permit.

The towing company may simply be asserting the right of a business to defend itself against false accusations. Or Justin Kurtz may have been made a defendant in a Strategic Lawsuit Against Public Participation” (SLAPP).

A SLAPP is a claim filed for defamation or on other legal grounds against someone who has criticized or spoken out against the complainant, the plaintiff, in some public context. “Public context” includes social networks like Facebook, Internet blogs, Twitter, and the like. No matter how weak the case might be (normally, the plaintiff does not expect to win the lawsuit), the defendant is forced to spend money responding to the claim, and to be hesitant to speak out publicly again. The chilling effect is the purpose of a SLAPP, or a legal threat of one.

Several states have passed “anti-SLAPP” statutes that offer some protection to defendants in SLAPPs. California’s is generally considered to be the most protective of rights of free speech. An article on USA Today online recounts the experience of a San Francisco marketing manager, Jennifer Batoon, who vented on Yelp.com, an Internet rating cite, about her dentist (“Want to complain online? Look out. You might be sued,” June 9, 2010).

The dentist, Gelareh Rahbar, sued Jennifer Batoon, attributing a drop in revenue to her critical review. Jennifer Batoon won in the suit. Thanks to California’s anti-SLAPP statute, the judge dismissed the case and ordered Gelareh Rahbar to pay $43,000 for Jennifer Batoon’s legal fees. But, according to the article, Jennifer Batoon now limits herself to positive reviews on Yelp.

At least 26 states and the territory of Guam have anti-SLAPP statutes, but some of them limit the scope of the statute to speech concerning public bodies. They offer protection to individuals (but not necessarily media) speaking out about government actions.

There is no federal anti-Slapp statute, but in December 2009, Representative Steve Cohen introduced an anti-SLAPP bill, titled the Citizen Participation Act, in the House of Representatives.

Anti-SLAPP statutes, as well as the prospect of bad publicity, might deter some SLAPPs. On the other hand, sometimes a defendant in a SLAPP, or the recipient of a legal threat of one, finds that the most practical response is to take back the comments complained of.

Clearly, the chat room in which free speech is most free is in your home or at the neighborhood pub.