Idaho needs an anti-SLAPP law to ensure free speech doesn’t depend on your wealth

Shortly after it was thrown out of court, a defamation lawsuit filed by Clearwater Analytics co-founder Michael Boren has been revived, further drawing out court proceedings, as Nicole Blanchard reported.

The wealthy Boren is suing several individuals who spoke out against granting a conditional use permit on his property, raising concerns about his use of aircraft on his ranch in the Sawtooth National Recreation Area.

Boren’s suit had recently been dismissed by Judge Stevan Thompson, who earlier found that the lawsuit didn’t have enough merit to proceed and could have a chilling effect on free speech.

“In this case, there is the potential for a great chilling effect on constitutional rights not just for these named defendants, but for all the members of the public who spoke on this issue which was undoubtedly a matter of public concern in which they were entitled to involvement,” Thompson wrote in his dismissal.

I won’t weigh in on the merits of Boren’s suit in particular here. Whether you believe Boren is pursuing a legitimate claim or seeking to abuse the legal system to silence his critics, it is absolutely clear that the system can be abused. The way to stop such abuses is also clear: anti-SLAPP legislation.

SLAPP stands for “Strategic Lawsuit Against Public Participation.” It refers to a class of frivolous defamation suits used to harass and intimidate critics. When he dismissed the case, Thompson raised the possibility that Boren’s suit fit the criteria of such a suit.

But Idaho is one of the only 18 states that do not have an anti-SLAPP law.

The absence of a SLAPP law serves only one purpose: to allow people with lots of money to silence speech they don’t like.

The legitimate purpose of defamation laws is simple. If someone tells a falsehood about another that is sufficiently damaging, and there is reason to believe the person did it knowing it was a lie, defamation suits are a way to gain recompense.

But more and more often, defamation laws are used for a secondary illegitimate purpose: to silence legitimate, free speech about major public figures and areas of public concern. In many of these cases, the purpose is not to gain damages but to draw out the proceedings for as long as possible, and to impose so many court costs on the speakers you don’t like that they are forced to shut up.

And it can work, especially if the suit is launched by a wealthy individual against a speaker who has much less money. Spending $10,000 on lawyers is a much different proposition if you are living paycheck to paycheck than if you make that much in a week.

So the weight of the legal procedure itself is sufficient to bury someone without means. Many cases like these are settled despite the fact that no legitimate claim exists in the first place.

A strong anti-SLAPP law can do a great deal to stop frivolous lawsuits in their tracks. It allows a judge to evaluate early on whether a plaintiff is pursuing a legitimate claim or is attempting to use the court system to illegitimately punish free speech. If a defendant wins a SLAPP claim, it not only saves the defendant from the expenses of a long court fight, it imposes a strong penalty on the person who sued — usually triple the court costs and attorney fees of the defendant.

Idaho needs a law like this.

The most fundamental right that Americans have is the right to free speech. It is what allows you to argue against the government, to argue against political opponents about what the government should look like, and to fulfill the innate human right to freedom of conscience.

Idaho lawmakers should work next session to protect that most basic right.

Bryan Clark is an opinion writer with the Idaho Statesman based in eastern Idaho.