Ohio Slaps Back at Lawsuits Intended to Curb Free Speech

Individuals and companies sued with the intent of silencing or punishing them for exercising their free-speech rights now have a stronger legal leg to stand on, thanks to Ohio’s enactment of its own Anti-SLAPP statute.

The rise of activism in the 1960s and ‘70s also gave rise to the Strategic Lawsuits Against Public Participation (SLAPP) as a way to suppress criticism. For decades, the state courts and the typical litigation process failed to adequately protect against the harassing and abusive nature of SLAPP suits. However, recently state legislatures’ have stepped up and enacted laws that provide an antidote to the SLAPP suit issue.

In 2020 the Uniform Law Commission finalized the language for the Uniform Public Expression Protection Act (UPEPA), which provides a method to adequately protect against abusive litigation in the First Amendment context. The passage of Chapter 2747 of the Ohio Revised Code (Ohio’s Anti-SLAPP law) rendered the Buckeye State the nation’s tenth legislature to adopt a version of the UPEPA.

Many states, including Ohio, previously had no Anti-SLAPP laws and no way to protect people from meritless lawsuits intended to silence them on matters of public concern. The UPEPA and R.C. 2747 achieves this by providing broad protections for expressive rights, fast merit based dismissals, and fee-shifting.

Ohio’s Anti-SLAPP law tracks many of the key features of the UPEPA model. On a high level, the statute directs state courts to construe the law broadly to protect the rights of speech, press, assembly, petition and association under both the U.S. and Ohio Constitutions. More specifically, it provides a special motion for expedited relief; requires a court to hold a hearing within 60 days of the motion and rule within 60 days of the hearing; triggers a stay on all other proceedings, including discovery; and applies to a cause of action “based on” a person’s communication in a government proceeding, or communication on an issue under governmental review, or the exercise of those precious rights mentioned above.

Both the UPEPA model and Ohio’s Anti-SLAPP law provide some exceptions. One is communications by businesses when the claim arises from selling or leasing goods or services. This means that if the defendant is a business and the speech relates to that business’s goods or services, protection may not apply. Additionally, they exempt suits against government employees and entities acting in their official capacities, and lawsuits brought by the government to enforce public health or safety measures.

If a court grants an Anti-SLAPP motion, it must award reasonable attorney’s fees, court costs, and other reasonable litigation expenses to the movant. Conversely, if the motion is denied and found frivolous, fees may be awarded to the respondent.

Those who stand to benefit most from Ohio’s Anti-SLAPP law are individuals and organizations that are exercising their constitutional rights to free speech, such as journalists, news organizations, and everyday citizens. Previously, they had to rely on traditional litigation – which can be costly and time-consuming. Now they have at their disposal an expedited process to get these baseless lawsuits dismissed and recover their attorney’s fees if they prevail.

The trend of adopting the UPEPA model doesn’t seem to be cooling off. Since Ohio’s adoption, four additional states – Idaho, Montana, Iowa and Delaware – have followed suit.