Memories Pizza and the First Amendment

Over the last week, Indiana has experienced a political firestorm. Conservative legislators passed an expansive religious freedom bill, and our conservative governor signed it. Since then, you know the story: the NCAA, Angie’s List, Apple’s Tim Cook, and NASCAR have all voiced objections to the law. The Indiana Chamber of Commerce opposed the law before it was passed. Our governor ducked the “does this law legalize discrimination” on national TV several times in one interview, leading to his becoming the butt of late-night comedians’ jokes.

A new firestorm erupted yesterday when a small town pizza parlor in Walkerton, Indiana, caught the Internet’s attention when its owner said on TV that she wouldn’t cater a gay wedding because her religious beliefs don’t recognize gay marriage. While there have been plenty of voices of outcry and support, some of it has gotten ugly—threats to the family and the business.

This is wrong and should stop immediately.

Don’t misunderstand me. I disagree strongly with the owner’s religious-based point of view.

But she has a right to believe as she wishes and to even express those beliefs without fear of retribution. She has the right to say she wants to be able to discriminate legally.

Every one of us in the United States at one time or another believes something that may be wildly unpopular, even angering. Nevertheless, if free speech means anything it has to permit people to express views like the pizza parlor owner’s—and not have to worry about personal safety afterwards. The mob’s veto must never be allowed to silence free speech, no matter how distasteful or wrong it might be. As Justice William Brennan explained in the case of Texas v. Johnson, the answer to speech we don’t like is not restriction or mob veto. It’s more speech, with the aim of persuading the other person she is wrong.

Call the owner of Memories Pizza whatever you want: uninformed, bigoted, intolerant, stupid, anything. At the same time, please recognize that she has the right to her opinion and to voice it. You have the right to voice your opinion and persuade her she’s wrong, but you don’t have the right to use threats to force her to recant her views. That’s what fascists do. It would be unfortunate to meet intolerance with fascism. No one wins in that situation.

Be quiet, or I’ll SLAPP you

Earlier today I received an invitation to appear on a panel discussion being put on by the Florida Bar’s media law section. (Yes, I’m in Indiana and someone in Florida—besides Mickey Mouse—knows me.) The topic is SLAPP suits and anti-SLAPP legislation. Unfortunately, I can’t attend the event in person (even though it is in Orlando), but hopefully I can participate by Skype.

For those who don’t know, SLAPP is an acronym for “strategic lawsuit against public participation.” SLAPP suits became popular for a while among corporations and other interests who were being picketed or criticized by activists. Greenpeace, for example, might be engaged in some action to draw attention to poor environmental activities of some business. Or, you might have Save The River opposing a deal that would let a polluter off the hook. The shrewd businesses realized that an easy way to deal with these flies in the ointment is to threaten them with financial ruin. SLAPP suits provided just that kind of vehicle. When Greenpeace opened its mouth, it was hit with a SLAPP suit. The cost of defending against the suit—regardless of its merits—is more than Greenpeace can handle, so they quiet down.

Eventually, in the 1990s, activists managed to get state legislatures to pass laws to deal with SLAPP suits. Basically, these anti-SLAPP laws allow the activists to file a motion at the outset of the lawsuit and ask the court to determine if the SLAPP suit is attacking activities protected by the First Amendment on matters of public concern. If the court concludes the answer is yes, the lawsuit is dismissed. Some anti-SLAPP laws allow the activists to recover attorney’s fees from the target of their criticism.

Anyone who has been involved with politics knows that activists rarely get their way in state legislatures unless they are backed by powerful interests (money). When it comes to anti-SLAPP laws, the activists had a very powerful ally: news organizations. Television stations and newspapers were tired of being sued for defamation over their stories, so they saw the proposed anti-SLAPP laws as a panacea. The news organization could file the motion to dismiss, argue that their story was an exercise of First Amendment freedoms and dealt with a matter of public concern. Case dismissed.

Today, SLAPP suits are being targeted at bloggers and anonymous critics participating in public discussion boards and forums. Bloggers are fighting back by using anti-SLAPP laws.

As one who thinks the First Amendment may not protect enough free speech and freedom of the press (even when the press is behaving like morons), I like the idea behind anti-SLAPP laws. They prevent the chilling effect that SLAPP suits could have: driving activists out of an issue that affects the public at large. The news media can report on the underhanded dealings of some mega-corporation (or the small business down the street), and groups like Save Our Neighborhood don’t have to worry that they will get sued and face huge legal fees when they oppose the construction of a coal gasification plant nearby.

Anti-SLAPP laws do have their downside, however. These laws effectively close the courthouse doors to people who have been genuinely wronged by a news story. For example, a crime victim might be humiliated by details of the crime offered up by the news media. Even if the victim isn’t named, a story might be too revealing. That victim might sue for invasion of privacy, but his suit is certain to face a motion to dismiss based on the anti-SLAPP laws in that jurisdiction. Certainly, the argument would go, the fact a crime occurred is a matter of legitimate public concern, but are the gory details a matter of concern in the same way? There’s a lot of room for debate there. Anti-SLAPP laws serve a valuable purpose, but they can also have unintended consequences.

Should anti-SLAPP laws remain on the books, or should they be repealed? Should there be certain exceptions for people claiming defamation? How do we best balance the competing interests?