Congressional Republicans and Silicon Valley are racing to pass legislation to combat nuisance lawsuits against online speech — before a litigious President Donald Trump gets a chance to veto it.



Tech companies and GOP lawmakers have found common cause in trying to make it harder to sue people for what they say online, inspired by cases such as a Virginia carpet cleaner’s attempt to punish the writers of negative Yelp reviews. But while the anti-lawsuit crusade meshes with Republicans’ traditional dislike of trial lawyers, supporters fear it will collide with Trump’s fondness for litigation against his critics — including his real or threatened suits against a Miss USA contestant, a rapper who used his name in a YouTube video, a journalist who questioned his net worth and former GOP primary rival John Kasich.

So the bill’s supporters are pushing to get the legislation passed while Barack Obama is still president.


“Obama will sign this. I don’t think Trump will,” said Texas Republican Rep. Blake Farenthold, a lead sponsor of the anti-lawsuit bill — who also happens to support Trump’s White House bid. While he praises Trump as a deal-maker who can get things done in Washington, he says the prospect of the billionaire’s nomination is “why I’m pushing to get it done” before Congress leaves for its fall recess.

The fight over online speech is just the latest example of issues where Trump has given many of his supporters reason for nervousness about what he might do in the White House, from his praise for Planned Parenthood to his call for letting Medicare negotiate drug prices. And Farenthold is not above tapping into anti-Trump sentiment to build support for the SPEAK FREE Act, which he’s co-sponsoring with California Democrat Anna Eshoo.



“It’s good legislation and stands on its own, but if someone’s dislike for the presumptive nominee gets me the vote for this legislation, I’ll take it," he said.

The Trump campaign declined to comment about the Farenthold-Eshoo bill to make it easier to fight anti-speech lawsuits — popularly known as “strategic lawsuits against public participation,” or SLAPPs. But some of the bill’s supporters say the blustery businessman’s affection for litigation show he’s out of step with a tech industry that depends on content from Internet users to fuel the success of companies like Yelp, Facebook and Twitter. (That's on top of his well-publicized slams against tech figures like Facebook CEO Mark Zuckerberg and Amazon CEO Jeff Bezos.)

“Trump’s approach is antiquated and goes against the general sense of how people engage on the Internet,” said Laurent Crenshaw, director of public policy for Yelp. “The Internet is where people have conversations, often about other people. Unfortunately, some actors — Donald Trump being one of them — want to squelch any negative commentary.”

Crenshaw, a former Republican House aide, had been slated to be an alternate delegate at this summer’s Republican National Convention, but he announced mid-May that he’d withdrawn over his qualms about Trump.

Gary Shapiro, CEO of the Consumer Technology Association, has said passing an anti-SLAPP bill would be a fitting rebuke for the Republican hopeful.

“Time and again, Trump demonstrates a flawed understanding of the U.S. Constitution and of American values,” Shapiro, who backed Sen. Marco Rubio’s candidacy, wrote this spring in The American Spectator. “Supporting strong anti-SLAPP legislation would send Trump a message: No reasonable, thinking American wants a bully in the White House.”

Trump’s history of litigation includes frequent suits and threatened suits in response to people's messaging on and off the Internet.

In 2012, the Miss Universe Organization Trump co-owned at the time brought a legal claim against a contestant in its Miss USA pageant, in part over Facebook posts in which she called the event “fraudulent.” In 2013, he threatened a $25 million suit against the creator of an online petition that encouraged Macy’s to “Dump Trump." That same year, he said he would teach rapper Mac Miller “a big boy lesson about lawsuits" after the musician posted a YouTube video of a wealth-fetishizing song called "Donald Trump." (Trump praised the song at first, but changed his tune after it went viral.)



Trump's litigiousness has extended into the presidential campaign. In November, following reports of a $2.5 million pro-Kasich super PAC investment in anti-Trump ads, Trump tweeted: “I will sue him just for fun!”

In some cases, he has openly acknowledged that going to court is less about seeking justice and more about joyfully punishing enemies. In one infamous example, he sued a New York Times business editor over a book in which the writer reported on doubts that Trump was the billionaire he claimed to be.

“I spent a couple of bucks on legal fees, and they spent a whole lot more,” said Trump, who lost the case. “I did it to make his life miserable, which I’m happy about.”

That’s exactly the point of the anti-SLAPP fight, say supporters of the effort to limit the litigation.



“It’s a bullying tactic,” said Evan Mascagni, a New York City-based attorney and the policy director of the Public Participation Project, which is pushing for federal anti-SLAPP legislation. “They use it to silence and harass their critics, largely because they have deeper pockets than their critics do.”

A pair of University of Denver professors coined the term “SLAPP” in the late 1980s to capture what they called “the newest litigation explosion,” including cases in which developers sued environmentalists who had opposed their real-estate projects.

Critics of the suits have since expressed concern about the threat that litigants pose to online businesses like Yelp, the travel forum TripAdvisor and the employer-rating service Glassdoor, which depend on a steady stream of user-generated reviews. Similarly, Facebook and Twitter sell advertising based on users' posts, while Airbnb and Uber rely on consumer reviews — all of which could dry up if people are afraid of being sued for their opinions.

The Farenthold-Eshoo bill, which has more than 30 co-sponsors, would create a special legal mechanism for having SLAPP cases dismissed early in the proceedings. Moreover, a provision known colloquially as "loser pays" would pin legal costs on the people who had filed the cases.

But critics of the legislation argue that it would expand existing rules against wholly frivolous cases too broadly, robbing some litigants of their constitutional right to go to court against people who had smeared them.

"Nothing limits it to meritless lawsuits," said Jennie Rasmussen, senior policy counsel with the American Association for Justice, at a Capitol Hill briefing last summer. Rasmussen — whose group was known as the Association of Trial Lawyers of America until a decade ago — said the bill "is going to apply to a lot of lawsuits you don't intend it to apply to," citing the Church of Scientology's attempt to use Texas' anti-SLAPP law to get a harassment case against it dismissed.

The fight to curb litigation is a traditional cause for Republicans in Congress, who have long condemned Democrats and trial lawyers for engaging in what they see as a dangerous symbiosis. According to this GOP critique, the Democrats generate nit-picky and easily broken regulations that ensure a plethora of tort cases, which the lawyers reward by acting as one of Democrats' most reliable sources of political money — and, the Republicans argue, driving up the costs of doing business for the entire U.S. economy.

Farenthold's bill faces tough odds of gaining traction in a presidential campaign year that will see Congress out of town for long stretches of the calendar. But Yelp's Crenshaw said Trump inadvertently gave the bill a boost of support on the Hill when he proclaimed a desire to “open up our libel laws” to make it easier to sue the news media.

“The response we’ve seen has been the opposite of what he wants,” Crenshaw said. “It’s highlighted that people need to have additional protections.”