By James Copland USA Today, 06-09-10
To protect First Amendment values, special rules to constrain lawsuits that might chill free speech are important. Indeed, these rules -- called "anti-SLAPP" laws -- are now more critical than ever given the rise of communication on the Internet.
The only problem is that they're too limited. Such laws should be expanded to curb lawsuit abuse more broadly.
Anti-SLAPP rules like those in California create two exceptions for speech-related lawsuits. First, unless suing parties can show they are likely to win, legal defendants do not have to submit to "discovery," the process in which opposing lawyers get access to paper and e-mail records and force defendants to face intense questioning in depositions. Second, unless suing parties win their suits, they must reimburse defendants' attorney fees.
These anti-SLAPP rules are the exception in America, but they're the norm in much ofthe rest of the world. The U.S. is the only developed nation that forces defendants to submit to expensive and invasive discovery before plaintiffs have done anything to establish the merits of their case. Every country in Western Europe requires that losers in lawsuits reimburse the winners' legal bills.
Unsurprisingly, America's unique litigation system costs more than these other countries', too. Tort lawsuits consume about 2% of U.S. gross domestic product, more than twice the share of the economy they consume in Germany, and three times that in Britain and France.
Just as the Internet has raised the stakes for anti-SLAPP legislation, electronic communications have made broader legal reform that much more imperative. Millions of e-mails are now subject to legal discovery, which makes for a lot of work for lawyers and a lot of cost for the rest of us. By some estimates, "electronic discovery" constitutes as much as 50% of corporate litigation costs.
The prospect of getting sued for an Internet blog post is scary, but it is no less scary for small-business owners, such as dry cleaners Jin and Soo Chung, who faced an economically crippling $54 million lawsuit in Washington, D.C., over allegations that they had lost a customer's pants. Applying anti-SLAPP rules to all lawsuits would not eliminate such abusive cases, but it would make them far less frequent.