A Tennessee law designed to bar harassing or frivolous defamation suits doesn’t prevent the plaintiff from withdrawing the suit after the defendant has incurred legal costs. That was the finding of the Tennessee Supreme Court Oct. 9 as it ruled that the wording of the state’s anti-SLAPP legislation didn’t pre-empt existing law that permits a party to withdraw a suit, even if late in the process.
A SLAPP suit is a Strategic Lawsuit Against Public Participation filed against people who criticize what they see as injustices or wrongful behavior. An anti-SLAPP petition is a counter-lawsuit that allows a libel suit to be dismissed faster if it doesn’t meet certain requirements.
First Amendment experts told The Tennessean this week that the court’s finding undermines the intent of the anti-SLAPP legislation. The loophole would have to be addressed by the state Legislature.
In its unanimous ruling filed earlier this month, the state’s highest court said people sued for libel who claim the libel suit is an effort to use the courts to unfairly silence them have no right to recover litigation costs if the libel plaintiff abandons his suit before an anti-SLAPP petition proceeds.
As reported by Angele Latham in the Nashville Tennessean, “Measures against these type(s) of cases were strengthened by the 2019 Tennessee Public Participation Act, which expanded the state’s anti-SLAPP law and allows judges to dispose of cases earlier in the legal process, before litigation drags on in the courts and the costs, often imposed by wealthy plaintiffs, mount to such extremes that defendants cannot pay.”
The Tennessee Supreme Court ruling “effectively creates an escape route for plaintiffs engaged in possible SLAPP suits,” Latham reported.
The case, Robert Flade v. City of Shelbyville, involved the condition of rental property owned by Flade. Some citizens had complained on social media, and, according to the lawsuit, at least one woman called Flade a slumlord in a video.
“Now, plaintiffs accused of filing SLAPP suits can continue litigation until the very last minute — until the hearing to determine whether they are engaged in a SLAPP suit — and then voluntarily dismiss the lawsuit, skirting the protections against SLAPP suits in the 2019 law and saddling defendants with massive court fees,” Latham wrote.
In its decision, the Tennessee high court said, “We are mindful that the TPPA ‘is intended to provide an additional substantive remedy’ and to supplement any remedies that are otherwise available under the Rules of Civil Procedure …”
However, “[W]e conclude that although the right to take a voluntary nonsuit (last-minute dismissal by the plaintiff) is subject to certain limitations, the mere filing of a TPPA petition is not among them. … In other words, we do not glean from these general statutory provisions a legislative intent to preclude a voluntary nonsuit after the mere filing of a TPPA petition.
The Tennessean article quoted Nashville free-speech attorney Daniel Horwitz as saying, “No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees.” Horwitz argued against the plaintiffs involved in the state Supreme Court decision. If lawyers can’t get paid to defend people against SLAPP suits, he said, it means “the end of SLAPP-suit contingency representations in Tennessee.”
The Free Speech Center newsletter offers a digest of First Amendment and news-media news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ