It’s not often that Republicans and Democrats can agree in today’s age of divisive politics but that was the case on Friday when state legislators from both parties unanimously advanced a bill in the Wyoming Legislature providing people immunity from lawsuits that attempt to constrain their First Amendment rights.
House Bill 223, sponsored by state Rep. Pepper Ottman, R-Riverton, aims to prevent “lawfare,” more formally known as strategic lawsuits against public participation (SLAPP).
SLAPP laws make it easier for defendants to have defamation lawsuits dismissed, and in some cases, can require the plaintiff to pay the defendant's legal fees, which HB 223 would instruct.
The media has often been the target of defamation lawsuits, as have members of the public, in recent years for comments they made on social media or other public forums. Although these lawsuits usually make little headway in court, they still work as a cudgel in tampering with free speech by costing their targets money in legal expenses.
The bill passed unanimously in the House Corporations, Elections and Political Subdivisions Committee on Friday.
The Significance
Colin Crossman, the head of the business division for the Secretary of State’s office, but speaking in his personal capacity, said one of Wyoming’s biggest competitors for LLC filings, Nevada, has some of the most extensive SLAPP laws on the books.
Crossman said as written, the bill would be one of the strongest anti-SLAPP laws in the country.
“This would make it difficult for people to engage in less than pleasant litigation here in Wyoming, where there’s not exactly the full possibility of victory, in oh call it frivolous defamation lawsuits in Wyoming,” Crossman said. “This will make that much more difficult to sustain here.”
Nationally known Anti-SLAPP scholar Marc Randazza spoke in favor of the bill and agreed it would be one of the toughest in the country, exceeding what he helped craft in Nevada.
“If you pass this law, it’s going to cost me a lot of money,” he jokingly warned. “My law will no longer be the beacon of the best anti-SLAPP law in the country.”
Crossman said he’s aware of at least one active case in Wyoming he believes the proposed law would affect. He mentioned another case where an individual was sued after they publicly claimed they would run the business better than the previous owner. The new owner was then sued by the previous owner for defamation.
Although a claim like this might have weak legal standing, Crossman said the threat of legal action and ensuing financial commitment can often serve its desired goal: to get someone to settle.
Last December, ABC News agreed to pay $15 million toward President Donald Trump’s presidential library to settle a defamation lawsuit over anchor George Stephanopoulos’ inaccurate on-air assertion that Trump had been found civilly liable for raping writer E. Jean Carroll.
The bill creates a set of requirements in the court for an affirmative right for qualified immunity.
Jessie Rubino, Wyoming state director of the State Freedom Caucus Network, spoke in support of the bill.
“In an era where we see ever increasing lawfare on both sides of the political spectrum,” she said. “This is a solution we can really use in Wyoming.”
The campaign arm of the Wyoming Freedom Caucus was sued last summer for the messaging it included in its campaign mailers, which many of the laws targeted by them described as false. Rubino told Cowboy State Daily she considers this lawsuit to be “lawfare.”
This case has not been thrown out and oral arguments were heard on it last week.
Beth Lance of the Wyoming Trial Lawyers Association, said her group has no position on the bill, but does have concerns it’s written too broadly and questionably constitutional as it allows a Wyoming resident to claim relief in out-of-state courts.
What this part of the bill does is allow a Wyoming corporation that got sued in another state to refile a case in Wyoming over the frivolous lawsuit.
“It makes it clear on what you can take on vacation with you out of Wyoming, and what you can’t,” Randazza said.
What It Does
The bill states that all laws in this state shall be construed as to grant qualified immunity from a lawsuit, prosecution and civil liability for any person in any action, case, claim, administrative proceeding, arbitration or other legal process that impacts the person's constitutional rights under the First Amendment to the United States constitution.
A person may invoke the immunity by showing that a claim, counterclaim or crossclaim is based on the person's use of the rights afforded under the First Amendment to the United States Constitution or article 1, section 20 of the Wyoming constitution.
The immunity may be invoked if a claim, action, proceeding, counterclaim or crossclaim is based on at least one action in furtherance of those rights, even if the claim, action, proceeding, counterclaim or crossclaim is also based on actions conflicting with those constitutional rights
Any denial of a motion to dismiss based on the immunity provided in the law would be immediately considered appealable.
If a person prevails on the claim, they can receive no less than $10,000 and up to $100,000 in damages.
The bill would go into effect immediately if passed into law.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
