Small: A free-speech victory for all Oklahomans

A free-speech victory for all Oklahomans

By Jonathan Small

Free speech and public debate are necessary ingredients of a democratic government, which is why the First Amendment of the U.S. Constitution enshrines free speech as a basic right. But that hasn’t stopped some entities from trying to do an end run on that fundamental right, including here in Oklahoma.

One tactic used by free-speech opponents is a “strategic lawsuit against public participation” (SLAPP) lawsuit. In such lawsuits, a person or entity files a lawsuit, typically for defamation, against a public-policy opponent. The lawsuits are frivolous. Those filing have no real expectation of court victory. Instead, they use lawsuits to generate significant legal expenses for their public-policy opponents and bankrupt or financially hamstring their opponents.

The Reporters Committee for Freedom of the Press has compiled a list of SLAPP lawsuits across the nation. One 2016 case involved a politician who sued Oregon Right to Life and the Oregon Family Council after those groups sent out mailers highlighting the lawmaker’s past sexual relationship with an aide, and a 2019 case where the lieutenant governor of Virginia sued CBS after the station interviewed two women who accused the lieutenant governor of sexual harassment.

To deter such abuses, Oklahoma and most states have “anti-SLAPP” laws that impose significant penalties on those using lawsuits to suppress free-speech activity.

Under the Oklahoma Citizens Protection Act, our state’s anti-SLAPP law, a defendant sued for defamation who wins a motion to dismiss by asserting a First Amendment privilege recovers costs and attorney fees—and the law requires that the party that filed the harassment lawsuit must pay a sanction “sufficient to deter” similar legal harassment in the future.

But a bill advanced this year would have gutted that free-speech protection by removing the requirement for courts to impose penalties.

Gov. Kevin Stitt showed great leadership by vetoing HB 1236, noting that the bill would ensure “a greater frequency of frivolous lawsuits against Oklahomans exercising free speech.”

Groups from across the political spectrum backed Stitt’s veto, including the Oklahoma Press Association. Mark Thomas, executive vice president of the Oklahoma Press Association, noted, “If you SHALL get your attorney fees back, you fight. If you MAY get your fees back, you must think hard about spending thousands of dollars to defend your right to free speech.”

When an override of Stitt’s veto was attempted in the Oklahoma House of Representatives, it was rejected on a 36-61 vote with members of both political parties voting to sustain the veto.

That vote was an important victory for the free-speech rights of all Oklahomans. If the right to voice your opinion in public-policy debates is contingent upon your financial ability to withstand a frivolous lawsuit, then free speech will be confined to only the wealthiest, while the average citizen is silenced.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.