SLAPP me

Legislation that would have offered greater protection to reporters in defamation lawsuits failed in the Senate on Wednesday, capping what was a tough morning of rhetoric for reporters.

Apparently, those of us in the print medium are in decline (at least in numbers) and because of that, public figures in Maryland must be wary of being defamed online by bloggers — some honest and some not — who have taken advantage of the ease of Internet publishing.

While the revelation on the Senate floor wasn’t anything shocking, it was used as a reason for senators to vote against SB 221, which would have altered the definition of a Strategic Lawsuit Against Public Participation (known as a SLAPP suit). The law is in place to protect defendants in lawsuits from being cleaned out by deep-pocketed plaintiffs who are seeking to “shut up” a critic through litigation.

The law says that defendants must prove the plaintiff brought the suit in bad faith — it knows it cannot win, but is going to court, anyway — but even taking the time to prove bad faith can be extremely costly, according to the Reporters Committee for Freedom of the Press.

But, with the declining presence of traditional media and the ease with which anyone with a laptop and Internet connection can publish writings, Sen. Bobby Zirkin, D-Baltimore County, and others feared that devious “bloggers” who go to the Web with lies and defamatory statements could be made nearly immune by an amendment to the law that would put the burden on the plaintiff to prove that it will win the lawsuit.

(This blogger/reporter, by the way, promises he is neither devious nor declining).

“It’s bad for anybody who puts themselves out there in the public sphere,” said Zirkin, a lawyer. “This is a dangerous bill.”

The Reporters Committee wrote that the change in the law would have protected reporters, bloggers and others from being financially drained in a lawsuit.

Sen. Brian E. Frosh, D-Montgomery, the bill’s sponsor, said the change in the law was not intended to protect libelous liars — it was made to protect shallow-pocketed individuals and publications. He invoked a 2011 case in which Dan Snyder, owner of the Washington Redskins, pursued a defamation lawsuit against the Washington City Paper, which could not afford drawn out litigation. Snyder dropped the suit in September.

“This is a bill about bullies who want to shut up their critics,” Frosh said, comparing the City Paper case to David versus Goliath. “What the bill says is, let’s protect David’s first amendment rights.”

Zirkin, though, raised enough doubt in the chamber for the Frosh bill to fail in a 25-21 vote.

“This particular juror is in doubt,” Sen. Nathaniel McFadden, D-Baltimore City, said. “When in doubt, I think we should vote red.”

Zirkin pointed out that the current SLAPP law is fine — it already protects individuals and publications from disingenuous lawsuits. That’s true, the Reporters Committee wrote, but potentially at great cost in court. The judge could force the bringer of the lawsuit to pay those costs, of course, but bill proponents weren’t entirely comfortable with leaving the financial matter in the hands of a judge.

Sen. Jamie Raskin, D-Montgomery, a law professor at American University, was the last to speak in favor of the bill — just before it was rejected.

“I want to err on the side of the First Amendment,” Raskin said.

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