America Desperately Needs a National Anti-SLAPP Law to Stop Censorship by Bad Political Actors

It’ll help prevent the weaponization of frivolous lawsuits against critics and opponents

(The UnPopulist illustration)

Dear Readers:

If there’s one lesson the Trumpian era has taught us, it’s that the threats to free speech rights do not come solely from laws, but from abusive litigation in civil courts. If President Donald Trump convinced Congress to send him a bill that prohibited media companies from criticizing him, the constitutional violation would be as clear as the light of day. But when he summons his coven of lawyers to file frivolous lawsuits on defamation and other grounds against media companies that criticize him or praise his political foes, that doesn’t fit quite so neatly into the “Congress shall make no law” standard established in the First Amendment.

Yet that’s exactly what Donald Trump and Elon Musk, a key force in the new administration, have been doing by filing Strategic Lawsuit Against Public Participation (SLAPP) cases against critics and foes. The world’s most powerful man and the world’s richest man can afford to unleash armies of litigators to endlessly wage battles against targets who simply don’t have the means for fighting back. Even more frighteningly, a MAGA casino magnate filed a petition to the Supreme Court last week seeking to overturn the landmark New York Times v. Sullivan decision that protects First Amendment rights by setting a high bar for public figures to succeed in defamation lawsuits.

It is unclear whether the nation’s highest court will accept the case. But easy SLAPP lawsuits are already wreaking havoc on the First Amendment’s free speech protections. (An overturned Sullivan would be nothing short of a body blow.)

But there is a simple, if partial, fix: A federal anti-SLAPP law.

We are thrilled to have the brilliant Ken White, a criminal defense attorney popularly known as Popehat on various non-Musk-owned social media platforms, share his experience as a First Amendment litigator and explain why a federal anti-SLAPP law is so critically needed.

Sarah Rumpf
Series Editor

In modern America, defamation cases—like war—are the continuation of politics by other means. The politics in question can be anything from ludicrously petty to historically consequential. Americans use defamation claims to fight everything from social media spats to rap beefs. Increasingly, America’s rich and powerful—especially President Donald Trump—use them to attack political opponents and to litigate political disputes over who won national elections.

Notice that I didn’t say we use defamation claims to resolve those disputes. Most defamation claims ultimately fail, and almost none of them reach trial. But winning often isn’t the point. The point is inflicting ruinous expense and suffering on the defendants and soliciting attention, support, and sometimes fundraising for the plaintiffs. It works. That’s why you see rich and powerful people increasingly abusing defamation lawsuits—sometimes dressed up unconvincingly as fraud lawsuits—to harass political enemies. This is a grave threat to free speech and the people who do it—like Donald Trump and Elon Musk—are ascendant.

Trump, who has long favored bogus litigation as a weapon against his enemies, has been on a censorial bender. In the last year alone he: sued a pollster for bad poll results; CBS for supposedly editing a Kamala Harris interview to make her look better; and ABC and George Stephanopoulos for bungling a description of E. Jean Carroll’s sexual abuse verdict against him. Musk, meanwhile, has sued both Media Matters and the Center for Countering Digital Hate for reporting about hate speech on X.

The Justice System Is Broken

Political litigation works because the justice system is broken. It’s cheap and easy to file a defamation complaint, even a big splashy one. I could draft one in 20 minutes and file it in state or federal court for less than a thousand bucks. But it’s ruinously expensive to defend a case, even if the claim is bogus. It costs a minimum of tens of thousands and up to hundreds of thousands of dollars to defend a civil suit in America. When Donald Trump was awarded more than $300,000 in attorney fees for defeating Stormy Daniels’ defamation case at an early stage, litigators weren’t surprised. The vast majority of Americans cannot possibly afford to defend themselves if someone sues them for their speech, even if that speech is clearly protected by the First Amendment.

This is bad for everyone, not just the folks who get sued. When a lawyer sends you a threatening letter demanding that you take down a Facebook post or retract a letter to the editor or apologize for a comment, giving in may be the only economically rational choice, freedom of expression be damned. It’s cold comfort to know that your free speech rights would be vindicated at trial if it will bankrupt you to get to that stage. Moreover, penury isn’t the only threat. Whether you win a defamation suit or lose, you’ll suffer the whole time. Litigation is humiliating, terrifying, and will destroy your health, your relationships, and your joy in life. I’ve never had a client enjoy litigation. They’re always grateful for it to be over.

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Free Speech Means Allowing Full-Throated Condemnations of Odious Views: A Conversation with Popehat

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The problem is more acute when the plaintiff has unlimited wealth and political power. It costs Trump and Musk a trivial amount of their assets to file as many meritless and harassing lawsuits as they like. Now that Trump is president and Musk his (for now) henchman, they will be able to bring government power to bear to magnify the impact of their lawsuits. For instance, experts widely and accurately regard Trump’s lawsuit against CBS news for violating Texas consumer laws as abjectly frivolous. (Trump alleges that CBS’s interview with Kamala Harris was tantamount to “election interference” because of the way it edited it.) But Trump’s new FCC Chairman Brendan Carr, who has long called for aggressive use of federal power against media, has demanded that CBS turn over records about the interview to the FCC.

Trump’s election has led to a cascade of powerful media companies settling dubious Trump lawsuits. Facebook is paying $25 million to settle Trump’s claim that the social media site violated his First Amendment rights by moderating him, another argument widely viewed as nonsense. ABC paid $15 million to settle Trump’s claims. That case had more merit but ABC’s abrupt surrender is troubling. It’s disturbing when media companies yield rather than fight for the First Amendment, but Trump is no ordinary plaintiff—he can wield the power of the state against enemies.

SLAPP and Anti-SLAPP

There is no easy solution to this power differential. But we can make things substantially more level by passing a federal anti-SLAPP statute that’ll make it easier not just to fight bogus speech-chilling cases in federal court but even deter them. Such a statute won’t stop Trump from abusing the power of the federal government, but it could slow down his bogus lawsuits and protect defendants from many other bullying plaintiffs.

A SLAPP stands for Strategic Lawsuit Against Public Participation and its purpose is not to remedy a genuine wrong, but to suppress expression on a public issue. In the early 1990s, California lawyers noticed that property developers, faced with environmental and neighborhood protests against new developments, were abusing the legal system by suing the protestors. The suits lacked merit, but because of our broken civil justice system, they were a successful deterrent. The California legislature passed the first anti-SLAPP statute—a state law that provides defendants a special remedy when someone sues them over their speech. Under California’s anti-SLAPP law, if a defendant can show the judge that the plaintiff is suing them over potentially protected speech, the plaintiff has to come forward with admissible evidence showing they can possibly win the case. If they can’t, the judge dismisses the case, and the plaintiff must pay the defendant’s attorney fees. It’s a game-changer.

To understand why anti-SLAPP statutes are necessary and why they work so well, I’ll have to inflict some simplified civil procedure on you. Normally, in American civil cases, judges can’t evaluate the factual merits of the case at an early stage, and must start out treating all the factual claims in the complaint as true. On TV, lawyers routinely barge into courtrooms and convince judges to dismiss cases on their merits for “lack of evidence.” That’s not real life. Actual courts can only dismiss a case at an early stage if the complaint is legally deficient on its face.

For instance, imagine that someone wrote a blog post calling me a dork, and I sued them for defamation. If my complaint said “they defamed me by calling me a dork,” the judge could dismiss the case as deficient on its face. Calling me a dork is a rhetorical insult, not a false statement of fact, and so can’t be defamation. But now imagine I cleverly and deceitfully drafted my complaint to say “the defendant published a blog post making false and defamatory statements of fact that harmed my reputation,” and didn’t reveal I was talking about the defendant calling me a dork. Generally, the judge would have to take that as true and deny the motion to dismiss, and wouldn’t be able to consider evidence outside the text of the complaint. (There are exceptions; the judge can consider “judicially noticeable” things, like the content of a public document, and sometimes can consider a document that the plaintiff discusses but does not attach.)

As a result, it’s easy to plead a bogus defamation claim in a way that survives a motion to dismiss. All the plaintiff has to do is frame the complaint in a way that conceals any First Amendment problems behind generalities and even lies. As a result, the plaintiff will be able to pursue the case through the invasive and expensive discovery process. The defendant won’t have another opportunity to get out of the case until there’s a chance to file what’s called a motion for summary judgment, which allows the defendant to bring in evidence of things not disclosed in the complaint. The result is many months or years of expense and hardship—even if the case is meritless.

As an example, consider Drake’s defamation lawsuit against UMG Recordings over its promotion of Kendrick Lamar’s diss track, “Not Like Us,” which repeatedly insults Drake as a pedophile. There is a pivotal First Amendment issue in the case: would an audience familiar with rap beefs understand Lamar’s lyrics to be making literally true statements of fact, or would they understand it to be part of a protracted rap battle, characterized by hyperbole, flamboyant non-literal insult, and theatrical rhetoric? Is it like a straight-faced accusation, or is it colorful exaggeration, a descendant of games like the dozens? Is it more like a statement in a newspaper article or more like a “yo momma” joke? That’s the whole case. But you’d never know it to read Drake’s complaint. That complaint barely mentions Lamar, doesn’t explain the context at all, and omits any discussion of the protracted rap beef. If you came to it without knowing about the situation, you might be mystified, wondering why Lamar abruptly attacked Drake, never knowing that this was part of an exchange of insults that included things like Drake claiming someone else fathered Lamar’s child. It’s drafted, in short, to prevent UMG from making the First Amendment argument in a motion to dismiss, because the necessary context isn’t in the complaint.

An anti-SLAPP statute changes that. If an anti-SLAPP statute applied to Drake’s complaint—or to my “dork” lawsuit hypothetical above—the defendant could file an anti-SLAPP motion providing the full context to the court. UMG could provide the background of the rap beef, my defendant could provide the actual blog post calling me a dork, and both could then argue that in context the speech is protected by the First Amendment. If Drake or I couldn’t offer admissible evidence that in fact the defendant said some false statement of fact rather than mere insult and hyperbole, we would lose and have to pay the defendants’ attorney fees.

Political Bullies Use SLAPP

This is no idle concern, especially in the age of Trump and Musk. Powerful plaintiffs are known for pleading their complaints in clever attempts to evade the First Amendment. For instance, if Musk carries through on his threat to sue Tim Walz, Minnesota’s Democratic governor, for saying that Musk gave a Nazi salute, expect Musk’s lawyers to strip both the salute and Walz’s description of the context. Both Musk and Trump attempt to conceal the censorial nature of their lawsuits by disguising them as claims for “fraud” or “consumer deception,” but anti-SLAPP statutes pierce the labels that plaintiffs apply to their claims and look at the heart of the case.

Effective anti-SLAPP statutes also protect speech through other procedural barriers. They apply however a plaintiff puts lipstick on the defamatory pig: whether the claim is styled as invasion of privacy, harassment, fraud, or whatever else the plaintiff can devise, the statutes apply if the heart of the claim is aimed at protected speech. They halt all other proceedings in a case once filed, so the plaintiff can’t blitz the defendant with expensive and abusive discovery. In many cases the statutes allow the defendant to appeal immediately if they lose the motion, further delaying the case and blunting harassment-by-litigation. I’ve filed half a dozen anti-SLAPP motions in the last year, and they have dramatically improved my clients’ situation and freedom to speak. On a dozen other occasions, I’ve scared off aspiring plaintiffs who were threatening lawsuits by promising to file anti-SLAPP motions.

State Anti-SLAPP Statutes Aren’t Enough

Numerous states have followed California’s example and enacted anti-SLAPP statutes. Ohio just passed one this month. Unfortunately, their quality is inconsistent; some states’ statutes protect only a very narrow range of speech or lack the procedural protections that make statutes effective.

There’s also a bigger problem: state anti-SLAPP statutes don’t apply to federal claims. Even worse, the different Circuits of the United States Court of Appeals disagree for arcane reasons about whether state anti-SLAPP statutes apply to state claims heard in federal court. Drake sued UMG in federal court in New York, which has a robust anti-SLAPP statute, but UMG won’t get its benefit because federal courts in the Second Circuit don’t apply state anti-SLAPP statutes. The same goes for Texas, within the Fifth Circuit, a popular defamation tourist destination—Trump sued CBS and Musk sued Media Matters there, thwarting defendants’ ability to use state anti-SLAPP laws.

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Elon Musk’s Statist Road to Free Speech

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Fortunately, there’s a solution: a federal anti-SLAPP statute that would apply in federal courts across the nation to both federal and state claims heard in federal court. This is the most effective way of thwarting forum-shopping litigants who rush to Texas to suppress speech. It would mean that performative, retaliatory lawsuits like those filed by Trump and Musk would be halted in their tracks and, if meritless, dismissed. The defendants could recover fees and feel justifiably more secure in their speech rights. Plaintiffs without deep pockets would be deterred from filing bogus cases in the first place. Anti-SLAPP statutes have already proven effective in thwarting the powerful—consider Elon Musk’s humiliating loss against the Center for Countering Digital Hate, or Sheldon Adelson’s loss to the National Jewish Democratic Council. In both cases, the defendants prevailed through an anti-SLAPP statute.

Congress has repeatedly considered federal anti-SLAPP statutes, but they’ve never passed one. In December 2024 members of Congress from both sides of the aisle proposed a new one. It has strong and diverse backing. It ought to pass on its merits. After all, both parties pay lip service to free speech and purport to oppose frivolous lawsuits, and there are plenty of nonpartisan stories of financially ruinous and frivolous litigation. This can be spun in a way that appeals to everyone.

Yet the proponents face a grim political reality. Donald Trump has a compliant Republican Congress that is sensitive to his extreme tenderness to offense. Even if backers don’t spin the bill as a rebuke to Trump’s habit of bad-faith litigation, Republicans may perceive the bill as such. Trump himself has a long history of wanting to make it easier, not harder, to sue for defamation, repeatedly saying that he wants to “open up” libel laws to allow aggrieved plaintiffs to “sue them and win money.” The bill’s sponsors need to find a way to frame this fight so that it flatters his ego, or he’ll veto it out of pique.

But nobody promised fighting for free speech would be easy. Anti-SLAPP statutes are so stunningly effective that it’s worth our time to agitate for this one, even under these grim circumstances. The Public Participation Project will continue to promote anti-SLAPP bills in Congress law and provide information about supporting such bills, so follow them.

Nobody likes a bully. Bullies like SLAPP suits. Regrettably, America is overrun by bullies—and some of them, like Donald Trump and Elon Musk, have absolutely no scruple about abusing the legal system to punish their political enemies. Support state and federal anti-SLAPP statutes to help stick a thumb in the bullies’ eyes.

© The UnPopulist, 2025

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