Ohio Anti-Slapp Legislation Moves On

I was asked to testify this week before the Ohio House Civil Justice Committee in support of Ohio Senate Bill 237.  The bill is titled the "Uniform Public Expression Protection Act."  It's more commonly referred to as Ohio's Anti-SLAPP act. 

A "SLAPP" is a "strategic lawsuit against public participation."  What it refers to is a lawsuit filed by someone with deep pockets to stop citizens from speaking on matters of public interest.  The lawsuits lack merit, but by the time the court makes that finding, the citizens are forced to spend thousands of dollars and hundreds of hours defending themselves.  The proposed legislation (which is the law in 33 states) establishes an expedited process for deciding the merits and dismissing the suit. 

In my view, we have needed this law for long time, but we may need it even more in the future.  Here is my testimony.

My name is Jack Greiner.  I am an attorney with the Faruki law firm. I have practiced in the area of media law and the First Amendment for nearly 30 years.  I do not intend to dwell on the merits of SB 237, as they are obvious, and others have spoken about them better than I could. 

I would like to talk today about why this legislation is necessary both now and in the future.  Ohio has been a leader in ensuring its citizens have speech protections that extend in some cases even further than those provided by the United States Constitution.  For example, in the case of Milkovich v. Lorain Journal, the United States Supreme Court held that held that there is no special constitutional privilege for opinions.  But in the case of Vail v. Plain Dealer Publishing Company, the Ohio Supreme Court held that its four-factor test for determining if speech would be afforded an opinion privilege remained the law in Ohio, despite the Milkovich holding. 

In addition, the Ohio Constitution, at Article 1, Section 16 sets forth a guarantee that the Courts shall be open to the public.  The United States Constitution provides no such express guarantee. 

SB 237 continues this tradition of protecting speech.  The bill protects the right of citizens to speak to truth to power, free from the fear of crippling litigation.  And as appropriate as this legislation is today, it is possible that it will be needed even more in the not-too-distant future.  I say this based on my concern that the protections provided by the 1964 United States Court decision in New York Times v. Sullivan may not continue to survive. 

For 60 years now, the New York Times v. Sullivan case has imposed heightened proof burdens on public officials and public figures who bring defamation lawsuits.  But we know from the concurring opinion of Justice Clarence Thomas in the 2019 case of McKee v. Cosby that there is concern among certain of the Justices that the New York Times decision was "[a] policy driven decision masquerading as constitutional law."  More recently, Justice Neil Gorsuch has called for a reexamination of New York Times v. Sullivan.  Putting aside the merits of those arguments, if New York Times v. Sullivan is struck down, the protections afforded by SB 237 will be critical to the rights of Ohio citizens to speak freely. 

Thus, for reasons that exist today, and for reasons that may exist in the coming years, I urge the passage of SB 237.  My name is Jack Greiner.  I am an attorney with the Faruki law firm. I have practiced in the area of media law and the First Amendment for nearly 30 years.  I do not intend to dwell on the merits of SB 237, as they are obvious, and others have spoken about them better than I could. 

I would like to talk today about why this legislation is necessary both now and in the future.  Ohio has been a leader in ensuring its citizens have speech protections that extend in some cases even further than those provided by the United States Constitution.  For example, in the case of Milkovich v. Lorain Journal, the United States Supreme Court held that held that there is no special constitutional privilege for opinions.  But in the case of Vail v. Plain Dealer Publishing Company, the Ohio Supreme Court held that its four-factor test for determining if speech would be afforded an opinion privilege remained the law in Ohio, despite the Milkovich holding. 

In addition, the Ohio Constitution, at Article 1, Section 16 sets forth a guarantee that the Courts shall be open to the public. The United States Constitution provides no such express guarantee. 

SB 237 continues this tradition of protecting speech.  The bill protects the right of citizens to speak to truth to power, free from the fear of crippling litigation.  And as appropriate as this legislation is today, it is possible that it will be needed even more in the not-too-distant future.  I say this based on my concern that the protections provided by the 1964 United States Court decision in New York Times v. Sullivan may not continue to survive. 

For 60 years now, the New York Times v. Sullivan case has imposed heightened proof burdens on public officials and public figures who bring defamation lawsuits.  But we know from the concurring opinion of Justice Clarence Thomas in the 2019 case of McKee v. Cosby that there is concern among certain of the Justices that the New York Times decision was "[a] policy driven decision masquerading as constitutional law."  More recently, Justice Neil Gorsuch has called for a reexamination of New York Times v. Sullivan.  Putting aside the merits of those arguments, if New York Times v. Sullivan is struck down, the protections afforded by SB 237 will be critical to the rights of Ohio citizens to speak freely. 

Thus, for reasons that exist today, and for reasons that may exist in the coming years, I urge the passage of SB 237.