The Chilling Effect of Threats to Sue for Defamation

by Paul Alan Levy

Ted Frank’s comment on my post yesterday about the y-y-yuge sanction imposed on Donald Trump for bringing a frivolous defamation claim hit the nail on the head – this was an April Fools Day prank.

But as Eric Turkewitz, who created the concept and posted the first blog on the subject, explains today, it was a prank with a serious substantive point — blustering threats to bring libel suits that cannot possibly succeed can have a chilling effect, just as the actual bringing of suits demanding millions of dollars in damages can have. It is one reason why we need anti-SLAPP statutes.

And the chilling effect is shown, in part, by the fact that a number of free speech litigators / bloggers who would have come in on the joke in the past sat out this time.  Maybe that’s because they just didn’t think it was funny, but I know for a fact that some of them (no names mentioned — they know who they are!) were spinning fantasies about how Trump might fashion a non-frivolous defamation claim and then throw his millions of dollars at litigating the cases to the bitter end.  And New York, where Trump lives and hence would likely sue on the assumption that Calder v. Jones allows him to do so, has a weak anti-SLAPP statute that would have provided no protection – that’s why Dan Snyder originally sued the Washington City Paper there

These threats do have an impact.  We need a statute.

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