From State Senator Amber Hulse comes legislation to help preserve the freedom of speech when it takes the form of “protected public expression.” The laws are becoming more and more common across the country, which is commonly referred to as anti-SLAPP Legislation. Referring to the definition as provided by the Reporters Committee for Freedom of the Press:
Short for strategic lawsuits against public participation, SLAPPs have become an all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings.
Anti-SLAPP laws are meant to provide a remedy to SLAPP suits. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights. In terms of reporting, news organizations and individual journalists can use anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an enterprise or investigative story.
Under most anti-SLAPP statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must show that they have evidence that could result in a favorable verdict. If the plaintiff cannot meet this burden and the suit is dismissed through anti-SLAPP proceedings, many statutes allow defendants to collect attorney’s fees from the plaintiff.
Hulse’s Senate Bill 137 proposes protective measures for those who are exercising their freedom of speech or the press on matters of public concern, which puts a heavier burden on someone who is attempting to use threats of a lawsuit and it’s expense in defending it as a way to silence their opponents:
Senate Bill 137
Introduced by: Senator HulseAn Act to establish procedures for anti-SLAPP actions to protect the exercise of a person’s constitutional rights, including freedom of speech.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 15:
Except as otherwise provided in section 2 of this Act, the provisions of this chapter apply to a cause of action against a person based on the person’s protected public expression. For purposes of this chapter, “protected public expression” includes:
(1) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
(2) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or
(3) Exercise of the person’s right of freedom of speech or of the press, the right to assemble or petition, or the right of association, as guaranteed by the United States Constitution or South Dakota Constitution, on a matter of public concern.
In a year where there’s a lot of goofiness up in Pierre, I think we should support legislators when they bring legislation to protect the public’s rights, especially our rights to speak truth to power in times where people are abusing the courts to squelch opposition.
If you care about the first amendment, you should encourage your legislator to sign on.
Kudos to Amber, and stay tuned!
While I don’t particularly care for Amber and her say anything to anyone style of politics, I have always said I will support good legislation regardless of who brings it. And this is good. It may be the most purposeful bill I have seen so far this session. Nice job Amber. Now stay away from Toby.
While I support this, I have a tough time seeing it pass into law, especially right now. If anyone finds out this applies to “freedom of speech” as defined by past SCOTUS precedent, which includes the freedom to assemble against ICE, which includes anyone the right to be press (no formal registration or ID), and it applies to all public spaces (someone filming you walking into the courthouse and even inside the courthouse), it will be dead on arrival. Most people seem to have this belief that they give permission to be filmed or be the subject of the camera if they can see the cameraman. They seem totally okay with the cameraman being a government surveillance mesh of traffic and security cameras, though. The new hot viral videos on YouTube are people standing on the corner filming with a tripod, and they don’t say anything, and the amount of people who run up to them, assaulting them, saying “you don’t have my permission to film” is outrageous. They end up getting pepper-sprayed after swinging at the cameraman a few times, and who knows how they get back in their car and drive away without causing an accident. We are living in crazy times.
Hi there,
I appreciate your comments, but this really has nothing to do with the bill.
The bill provides a person exercising their first amendment rights protections from “lawfare” style litigation aimed to chill their speech or actions. It’s a legal procedural bill to deal primarily with defamation cases to end the suit as fast as possible so a person does not have to spend thousands to defend their freedom of speech. Assaults and invasions of privacy are completely different matters.
Respectfully, this misunderstands what an anti-SLAPP bill does. Anti-SLAPP laws aren’t a far-right idea as ~39 states plus DC already have them, with bipartisan support. They don’t create new speech rights or protect any one ideology. They protect people from abusive lawsuits meant to silence lawful public participation, like speaking at meetings, reporting, organizing, petitioning government, or criticizing powerful people.
While the Constitution protects free speech, it doesn’t stop someone from being sued into bankruptcy. Even a meritless lawsuit can cost tens or hundreds of thousands of dollars to fight. Anti-SLAPP laws let courts quickly dismiss those cases and require the filer to pay attorneys fees when a lawsuit is clearly meant to intimidate, not resolve a real dispute. That’s why these laws are backed by Republicans, the ACLU, major media organizations, and groups that defend press freedom because without anti-SLAPP laws, free speech only works for people who can afford lawyers.
These laws are content-neutral and protect everyone: conservatives, liberals, journalists, activists, and regular citizens. This isn’t a symbolic “feel-good” bill; it stops the legal system from being used as a weapon. Free speech isn’t just what the Constitution promises, it’s whether THE PEOPLE can actually afford to exercise it.
As a legislator I believe every South Dakotan deserves to exercise their first amendment rights regardless of whether or not they can afford a lawyer.