In ruling against Murray Energy, appeals panel calls for an anti-SLAPP statute

Robert E. Murray, the Ohio coal baron who is perhaps best known nationally for suing meddlesome journalists, lost his latest court battle last week. That’s good news for the staff of the little Chagrin Valley Times, a weekly paper which has been in court against Murray and his company, Murray Energy, for the past two years, defending its coverage of a 2012 protest outside the company’s headquarters.

But the most significant part of the court’s ruling may have broader impact: A three-judge panel urged Ohio’s legislature to pass a law, like those on the books in a majority of states, that would discourage lawsuits of the sort Murray filed and affirm protections for free speech. That’s welcome news for anyone who cares about a free and robust press.

The case is one we discussed in May, as part of a broader look at Murray’s legal history. The story begins in December 2012, when the activist group Patriots for Change held a protest to object to Robert Murray’s decision to fire 156 employees after the presidential election. A reporter for the Chagrin Valley Times covered the protest for the Dec. 20 edition. Two weeks later, the paper published a column by its former editor criticizing Robert Murray and his company. Also published in that edition was a cartoon ridiculing Robert.

The following week, Murray Energy and Robert Murray sued Patriots for Change and the newspaper (naming personally the publisher and several employees) for false light and defamation, respectively. A trial court in Cuyahoga County granted summary judgment for the paper and the Patriots organization in May 2014. Murray appealed, and here we are—with last week’s decision.

On the merits, the Ohio Court of Appeals (Eighth District) affirmed the lower court based on First Amendment principles. Finding that Robert and his companies “are public figures subject to comment and discussion,” the court held that the Dec. 20 article “did not recklessly or knowingly publish a false statement of fact,” the editor’s column was not published with “actual malice,” and the cartoon did not contain “an injuriously false factual assertion made with actual malice.” Thus, each was a protected form of speech.

Most notable, however, was the court’s conclusion:

Sign up for CJR 's daily email This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech. These suits … can be devastating to individual defendants or small news organizations and act to chill criticism and debate. The fact that the Chagrin Valley Times website has been scrubbed of all mention of Murray or this protest is an example of the chilling effects this has. …In this era of decentralized journalism where the internet has empowered individuals with broad reach, society must balance competing privacy interests with freedom of speech. Given Ohio’s particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.

An anti-SLAPP statute is a measure that defangs so-called “strategic lawsuits against public participation”—complaints filed or threatened to deter a person or organization from speaking out on issues of public concern.

To be clear, the court’s conclusion played no part in its reasoning or holding—it was offered simply for consideration, and the paper prevailed even without an anti-SLAPP statute. But the admonition is notable nonetheless. Rarely do courts state their policy preferences so strongly and openly.

And the court is right: Ohio needs an anti-SLAPP statute. Every state does. As I’ve noted before, SLAPPs are usually disguised as defamation or invasion of privacy claims, and they’re not designed to win a case on the merits. Again, they’re designed to intimidate the target and to discourage others from speaking out.

Anti-SLAPP statutes, which exist in 28 states and Washington, DC, typically provide five things: protections for speech on issues of public concern and for activities related to petitioning the government, procedures to obtain early dismissal of a SLAPP, recovery of attorney’s fees and court costs for the target, speedy review of any motions to dismiss, and restrictions on the discovery process while the court considers such a motion.

Those provisions are valuable because, in the absence of an anti-SLAPP statute, a target’s options are limited. Basically, the target can file a traditional motion to dismiss, and if that fails, the target can file a motion for summary judgment, and if that fails, the target must prepare for trial or negotiate a settlement. So, even if a SLAPP is unsuccessful on the merits, the process of defending against one can be daunting and very expensive—which is the point.

As legal scholars George Pring and Penelope Canan, who coined the term SLAPP, have said, when a SLAPP is filed it transforms “a public, political controversy into a private, legalistic one.” This inhibits the First Amendment’s exercise. Worse yet, the resulting chilling effect, as legal commentator Victor Cosentino found, hinders the “effectiveness of our representational form of government” by reducing public participation in political and social issues.

That’s a high price to pay for a problem so easily addressed. Ohio, and the 21 other states without one, should pass an anti-SLAPP measure. It would good for journalism, and good for democracy.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.