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Bernard Berrian has had a rough month.
In early October, the much-maligned NFL receiver was forced to apologize after telling a double-amputee Iraq war veteran (who also happened to be a state congressman) who criticized him on Twitter to “sit down n shut up!!” Recognizing a situation that was ripe for comedy, sports and television blogger (and fellow Iraq veteran) Matt Ufford wrote a post satirizing the incident for the popular sports humor blog Kissing Suzy Kolber, featuring a mock Berrian sending insults via twitter to Pope Benedict XVI, the Dalai Lama, and a golden retriever puppy. Shortly thereafter, the writers at Kissing Suzy Kolber received a cease-and-desist letter from Berrian’s legal team threatening legal action for defamation and slander (despite the fact that the speech at issue was written, not spoken). KSK immediately pulled the post, not because Berrian’s claim had merit, but because they did not have the financial resources to engage in a lengthy legal battle.
This type of legal threat is a legal tactic commonly characterized as a SLAPP, or Strategic Lawsuit Against Public Participation, and is used by prominent public figures or organizations to chill protected speech by small, dissenting speakers. The threat of a lawsuit by a public figure or organization being criticized with more financial and/or legal resources than the speaker frequently induces the speaker to remove or retract their speech because they cannot afford the time and expense of a lawsuit, even if they are likely to succeed on the merits. Presently there are no federal anti-SLAPP laws, but some states have adopted stringent laws designed to prevent actors in that state from threatening frivolous legal action in order to chill free speech. These statutes do not exist in many states, however, and often apply only to government actors or issues in the public interest in the states that have them, leaving critics of public entertainment figures open to these sorts of threats. Despite the Supreme Court’s infamous declaration in Hustler Magazine v. Falwell that the First Amendment protects speech satirizing public figures as long as the speech could not be reasonably perceived as true, entertainment and sports figures can still achieve the same chilling effect on free speech through the threat of expensive litigation. Most recently, Daniel Snyder, owner of the Washington Redskins, sued the Washington City Paper for libel over an article that detailed and criticized Snyder’s various failings as owner of the Redskins. After Snyder admitted the suit was only designed to elicit an apology from the paper and that he never even read the article in question, his legal team dropped the suit, but speakers and writers who lack the financial resources of a major newspaper or magazine often cannot afford to risk incurring the same litigation costs as the Washington City Paper or Hustler Magazine.
So what’s the solution? Federal anti-SLAPP legislation should severely limit these sorts of suits. In the meantime, an Oregon court recently ruled that the state’s anti-SLAPP legislation applies to Twitter posts, so if your puppy wants to tweet disparaging comments about underachieving professional athletes, he might want to consider doing it in Oregon.
But at least he won his fight with your puppy. For now.
P.S. Kissing Suzy Kolber republished Ufford’s original post on October 31. Free speech for puppies prevails!
– Shane Valenzi
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