The system may not be perfect, but it’s the best there is.  Keep saying this over and over, and it might bring you some comfort if you’re a blogger who criticizes a product manufactured by a major corporation, or spills some information that a wealthy and powerful entity prefers remain confidential, and gets sued.  Our perfect system can crush the good guy if the bad guy has enough money to sue.

The problem isn’t who wins in the end, assuming the system doesn’t screw it all up in the process, but who is financially ruined by a lawsuit brought for that purpose alone.  Remember, blogging has yet to make anyone fabulously wealthy, and defending oneself costs a few shekels.  The party with deeper pockets has a huge advantage in shutting up the party in the right.  That’s the American legal system way. 

This is why the federal Anti-SLAPP legislation introduced by Rep. Steve Cohen (D-TN), HR 4364, the “Citizen Participation Act of 2009,” merits support.  Lawprof Eric Goldman provides the background for SLAPPs, strategic lawsuits against public participation. and why this legislation provides a well-crafted Anti-SLAPP weapon without damaging the right to sue when appropriate.

Effectively, defendants can turn the tables on the plaintiffs, file an anti-SLAPP motion to strike the litigation, and thereby ask the court to end the lawsuit much more quickly than under traditional rules. Second, anti-SLAPP laws allow successful defendants to be awarded their legal defense costs.

Thus, anti-SLAPP laws have a number of benefits: they get meritless cases off court dockets early, they force plaintiffs to think carefully about their lawsuits’ merits, and they make defendants financially whole for improper lawsuits. The laws protect online and offline speech equally.

Key to its effectiveness in stopping suits whose real purpose isn’t vindication of a right but to silence a critic by a deep-pockets plaintiff is the award of legal fees for the successful defendant.  How many bloggers have a spare hundred grand in their wallet to toss into beating back a frivolous suit designed to shut them up?  Without anti-SLAPP legislation, the best win is still a Pyrrhic victory, and that’s not good enough if, as Goldman explains, if we want to protect the “information ecosystem.”

Naturally, First Amendment Freedom Fighter Marc Randazza has taken up the Anti-SLAPP flag and plans to carry it into battle.  At the Legal Satyricon, he and his Satyriconistas (a name that I coined but he claims he did but I really did, no matter what he says) will be providing examples of why this legislation is needed.  For those who enjoy the occasional biblical reference, though, consider this legislation the weapon with which David and Goliath had a reasonably fair fight.

While lawyers often argue that it’s not the facts or the law that win a lawsuit, but the party with the best lawyer, the obscure the most important truism.  The American system of justice favors the party with the most money.  It’s not like they pay the best lawyer with bubble gum and kind words, you know.  Anti-SLAPP legislation will level this field, without undermining the ability to bring legitimate suits.  It’s time.

And if you get a spare moment, it would be swell if others might post about it to let Rep. Steve Cohen know that we appreciate his efforts, and others in Congress know that it’s okay to take a day off from creating new crimes and do something useful for once.