Decision in millionaire’s defamation case underlines why Idaho needs anti-SLAPP laws | Opinion
Idaho needs a law to prevent frivolous defamation suits from being abused by the wealthy to silence those who disagree with them. This has been clear for years, though the Legislature failed to pass legislation aimed at stopping it.
Lawmakers should fix that omission this year by passing a law aimed at curbing so-called Strategic Lawsuits Against Public Participation, or SLAPP suits. Anti-SLAPP laws allow frivolous defamation suits to be dismissed early in the process, so that a wealthy plaintiff can’t use the threat of drawn-out, expensive litigation to silence critics.
A district judge recently attempted to apply anti-SLAPP logic to dismiss a case brought by Michael Boren, the wealthy co-founder of Clearwater Analytics, over statements made by several individuals about an airstrip on his land in the Sawtooths.
But the Idaho Supreme Court, with good reason, was not prepared to allow a judge to do the work the Legislature should, and reversed that decision this week.
“The Idaho Legislature has not passed an anti-SLAPP act. In fact, the Idaho Senate recently rejected anti-SLAPP act legislation. … AntiSLAPP acts are a purely legislative creation. Neither the district court, nor Gadwa and Michael, have provided any common law authority to the contrary. As a result, anti-SLAPP act concepts do not apply to this case,” Justice Colleen Zahn wrote.
I’m not saying it’s clear that Boren’s case would lose an anti-SLAPP motion if Idaho had such a law or that it’s frivolous. It may be that Boren’s suit has a reasonable basis and a good chance of success (in which case an anti-SLAPP law would do him no harm).
Nonetheless, it is also clear that he has the wealth to turn the court system into a means of financially breaking those who oppose his interests or express views he doesn’t like — and he’s far from the only one. There are lots of clear cases where defamation suits have been used in Idaho for the purpose of shutting people up, rather than pursuing compensation for a legitimate injury.
That’s why Idaho should proceed to pass anti-SLAPP legislation.
It is probably unavoidable to some extent that the wealthy have greater access to pursue cases in court vigorously, whether or not they have merit. So the potential for abuse will always be present.
But lawmakers can mitigate it, and they should. In particular, any anti-SLAPP law should include a provision that allows the subject of a SLAPP suit to collected treble damages — three times the amount of attorney fees they incurred fighting the case. This will both incentivize good attorneys to take cases for defendants who aren’t wealthy and provide significant potential penalties for filing frivolous defamation suits.
Last year, a model bill was introduced by Sen. Brian Lenney, R-Nampa, but was voted down by moderates and Democrats in the Senate. (Yes, nearly all of his ideas are bad, but you know that old saying about broken clocks being right twice a day.)
As Idaho Public Television reported, some moderates said they were open to an anti-SLAPP law but were worried that Lenney’s bill had not received adequate vetting. There is ample time for such vetting if it begins now.
One other reason that some well-intentioned lawmakers might oppose an anti-SLAPP law is that prominent calls for such a law came from supporters Ammon Bundy, who claimed that St. Luke’s defamation suit against him was a SLAPP suit.
That is not a good reason to oppose such a law, however. Anti-SLAPP laws only allow judges to toss out cases that have no reasonable basis to be pursued in the first place or any chance of succeeding. The suit against Bundy resulted in a judgment of over $50 million, and it was obvious from the get-go that it had a reasonable basis. An Anti-SLAPP law would not have done Bundy a lick of good.
Lawmakers should make this legislation a priority to ensure free and robust discussion of important public issues. The size of your voice should not be dictated by the size of your wallet.