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Why ‘SLAPP’ lawsuits chill free speech and threaten the First Amendment
Research & Learn
You can’t use the legal system to punish people for speech you don’t like.
By Angel Eduardo
Last updated Jan. 16, 2025
Imagine you’re a history Ph.D. candidate who reported inaccuracies in a historical biography written by a prominent politician. In response, the politician hits you with a $10 million lawsuit.
Or imagine you’re a longtime search-and-rescue operator publicly opposing a wealthy landowner’s request to maintain an airstrip in a national recreation area. In response, the landowner sues you for defamation.
Or imagine you’re a pollster who predicts the result of a presidential election in your state — and the other candidate winds up winning. In response, the sore-winner sues you for consumer fraud and election interference.
If these scenarios make you think twice about speaking up, that’s the point.
These are the real cases of James Gregory, Gary Gadwa, and J. Ann Selzer, respectively — and they’re all examples of a speech-chilling bully tactic called “strategic lawsuits against public participation,” or SLAPPs.
SLAPPs are often used by wealthy and powerful people to silence, intimidate, and retaliate against their critics’ speech. They’re also abuses of our legal system and, most importantly, flagrant violations of our First Amendment rights.
In this explainer, we’ll go over what SLAPPs are, how they work, and why they’re a major threat to free expression.
What is a SLAPP?
“Strategic lawsuits against public participation” are exactly what they sound like: Instances where individuals and organizations use the legal system to silence speech they disagree with or dislike. In other words, it’s censorship by lawsuit.
SLAPP suits are not actually intended to win on the merits of their claims. Rather, their purpose is to bully their targets and to cost them significant time and resources as punishment for their criticisms or comments. They also warn other potential critics to hush up, or else they might be next.
This can be a very effective means of silencing dissent and suppressing disfavored speech — which has drastic consequences for our political and cultural discourse. After all, if your public participation lands you in expensive and exhausting legal proceedings, you’re not going to be very keen to participate in public.
If we cede the ability to speak to only those who can afford costly legal battles and weeks — or even months and years — under public scrutiny, free speech as we know it will cease to exist.
Litigation can cost a lot. Beyond the obvious financial burden, lawsuits can in many cases drag on for months or even years. Defendants often have to spend vast amounts of time and energy defending themselves in court and in public, which can wreak havoc on their personal lives, careers, relationships, and reputations.
The inevitable result is that people will refrain from criticizing or challenging people with deep pockets. It leaves speakers with a no-win choice: shut up, or risk your life savings defending your First Amendment freedoms. This is why SLAPPs are so often used as a censorial tool by the rich and well-connected against those with fewer financial or political resources.
SLAPPs try to disguise themselves as legitimate legal claims, but they’re paper-thin, at best
Of course, those who engage in SLAPPs can’t just come out and say they’re suing to shut their critics or opponents up. Instead, they often frame their actions as legitimate legal claims. Consider the case of Oklahoma historian James Gregory, who found himself in the crosshairs of Pennsylvania State Senator Doug Mastriano.
In 2018, Gregory was working toward his doctorate in history when he came across a historical biography written by Mastriano. When he tried to verify the book’s claims, Gregory became concerned that some of them were possibly fabricated. Gregory would go on to report more than 200 issues with Mastriano’s research to his alma mater, the University of New Brunswick.
, as Mastriano was running for governor of Pennsylvania at the time. In response, Mastriano filed a lawsuit against Gregory, the University of New Brunswick, and many others, accusing Gregory of defamation as well as of violating and .
When it comes to SLAPP suits, dubious defamation claims are par for the course. Defamation refers to false statements of fact, both written (libel) and spoken (slander), that harm another’s reputation. However, not only does Mastrianos' defamation claim target protected academic opinion, it also fails to allege facts to support “actual malice.” This is a First Amendment guardrail for speech about public officials that the Supreme Court affirmed in the seminal defamation case New York Times v. Sullivan. To prove actual malice, plaintiffs must prove that the defendant made their comments “with knowledge that it was false or with reckless disregard of whether it was false or not.”
The other charges Mastriano hit Gregory with were truly baffling. The RICO Act was created to curb organized crime, and antitrust laws were designed to target monopolies. James Gregory is neither a criminal nor a corporation. He is a historian disputing claims published by another historian — a dispute that should be worked out in the marketplace of ideas, not our courtrooms.
FIRE came to Gregory’s defense, asking the court to dismiss Mastriano’s lawsuit because it threatens academic freedom and James’ First Amendment right to criticize public officials.
SLAPPs are most often brought on by wealthy and powerful people against those with much more modest means, and this imbalance of power is important to note.
NEW: FIREdefends Idaho conservation officer sued for criticizing wealthy ranch owner’s airstrip permit
Press Release
FIREwill defend retired search-and-rescue operator Gary Gadwa at the Idaho Supreme Court
Take the case of Gary Gadwa. Gadwa is a lifelong conservation officer and former emergency medical technician, with 38 years of experience in search-and-rescue operations in Idaho’s federally protected Sawtooth National Recreation Area. In 2021, wealthy tech magnate Michael Boren applied for a county permit to designate part of his Stanley, Idaho, ranch as an airstrip. Boren claimed that the strip could be used for search-and-rescue operations — a claim Gadwa strongly disagreed with. He testified to a county commission that the airstrip wouldn’t benefit local search-and-rescue, and also noted that it would negatively affect local wildlife.
Ultimately Boren would secure his permit, but he wasn’t satisfied with mere victory. He also sued Gadwa and 23 others for defamation over their criticisms. Idaho’s 7th District Court correctly the lawsuit in 2022, but Boren appealed.
FIRE came to Gadwa’s defense, explaining to Idaho’s Supreme Court that this was a suit using vague defamation allegations to force Gadwa and others into court, punishing them for exercising their First Amendment rights to speak out about community concerns.
SLAPPs can have far-reaching political and democratic consequences
The cases of Gregory and Gadwa are bad enough, but the negative effect of SLAPPs goes well beyond costly conflicts between individuals. When wielded by political figures in response to speech regarding elections, for example, SLAPPs can also have disastrous effects on our political discourse — and, by extension, our democracy itself.
Which brings us to the case of renowned pollster J. Ann Selzer.
Selzer’s final poll of the 2024 Iowa electorate, commissioned by the Des Moines Register, showed that then-candidate Donald Trump would lose. Selzer had employed the same methodology as her previous polls, which had accurately reflected the winner of every presidential race in Iowa since 2008 (including Trump’s victory in 2016), but on Election Day, .
FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101
News
A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.
The next afternoon, Trump the “corrupt” poll from “one of my enemies,” saying it was “” and “.” Following his win, Trump called for an official investigation into Selzer, assailing the “” as “ “”. He then took it one step further, filing a “consumer fraud” lawsuit against Selzer personally, her polling company, and the Des Moines Register.
But a poll that differs from an election result doesn’t constitute election interference or fall under Iowa’s consumer fraud statute. It is hard to imagine a legal claim that violates basic First Amendment principles more thoroughly than does President-elect Donald Trump’s lawsuit, and it’s even harder to imagine a more textbook example of a SLAPP.
FIRE is representing Selzer pro bono against Trump’s SLAPP lawsuit to defend her against false claims of election interference and consumer fraud, to help remove the punishment-by-process incentive of SLAPPs, and to safeguard the First Amendment right of all Americans to speak on core political issues.
The rise of anti-SLAPP legislation, and the stakes for free speech
Ideally, First Amendment protections and fair pleading standards would be enough to stop most SLAPPs in their tracks. But due to the way court procedures generally work in many states and federal courts, SLAPPs often get pretty far — and as a result do a ton of damage to defendants’ lives and wallets — before they’re tossed out of court.
Given that this outcome is precisely the goal of SLAPPs, there is very little to deter powerful people from using them to retaliate against their critics.
SLAPPs are one of the most powerful tools against free expression and open discourse, and Americans must strongly oppose them if they hope to preserve our First Amendment rights.
Thankfully, many legislatures have recognized the risk SLAPPs pose to our expressive freedoms and our legal system. As a result, to offer stronger protections against this flagrant abuse of power and waste of government resources. Anti-SLAPP laws provide the tools for defendants to fight back against SLAPPs early, and make plaintiffs liable for paying a defendant’s attorney’s fees and costs — forcing them to think twice about using the legal system as a censorial weapon.
However, these laws vary from state to state, and some are more speech-protective than others. Some apply only to speech on certain topics, for example, while others provide no special procedural protections to halt costly and time consuming litigation. So far, attempts to enact federal anti-SLAPP legislation . Still, are adding protections against SLAPPs, so there is some hope on the horizon.
The freedom to speak up and speak out is the cornerstone of our democratic process. “Public participation” is, in fact, the whole ballgame. This can sometimes get messy, and people will not always enjoy or agree with the things said about them in the public square. But this is the foundation of our democracy, and the purpose of the principles enshrined in our First Amendment.
Strategic laws against public participation are antithetical to these principles and ideas. If we cede the ability to speak to only those who can afford costly legal battles and weeks — or even months and years — under public scrutiny, free speech as we know it will cease to exist. SLAPPs are one of the most powerful tools against free expression and open discourse, and Americans must strongly oppose them if they hope to preserve our First Amendment rights.
