The Latest in the SLAPP Wars

Recent decisions have created a wrinkle in the procedural issues related to anti-SLAPP laws. As we discussed in April, the DC Circuit created a split in the circuits when it departed from the general holding that anti-SLAPP statutes could be used in diversity cases applying state law. In Abbas v. Foreign Policy Group, LLC, the DC Circuit Court of Appeals held “a federal court exercising diversity jurisdiction may not apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision” and that federal courts must follow the Federal Rules.

Conversely, the plaintiff in Diamond Ranch Academy, Inc. v. Filer made the same procedural argument to no avail to a federal court in Utah which held the California Anti-SLAPP Statute was applicable to a diversity defamation action. Diamond Ranch Academy, Inc. (“DRA”), a youth rehab center in Utah, brought suit against Chelsea Filer, a California resident and outspoken critic of such treatment centers — having attend one as a minor. Filer started a website called www.drasurvivors.com and, according to the plaintiff’s complaint, “made defamatory statements about DRA on Facebook pages, blogs, and other media, both in writing and orally.” This ongoing discord in the Federal Judiciary evidences the need for Federal Anti-SLAPP law, such as the SPEAK FREE Act currently proposed in Congress. Since its introduction, the SPEAK FREE Act has garnered widespread support.

This push-and-pull is also happening in various state legislatures. The debate-taking place in Nevada exemplifies the different perspectives. In 2013, the Nevada legislature expanded its anti-SLAPP statute to protect any communications “made in direct connection with an issue of public interest in a place open to the public of in a public forum” creating a special motion to dismiss meritless claims against free speech awarding court costs, attorney’s fees, and a possible penalty if the motion is granted. While the new law attracted media and technology firms, it drew criticism from certain business owners who complained that the bar for bringing a well-founded defamation case was too high. In March of this year, a group led by Wynn Resorts introduced Bill 444 to roll back the measures in Nevada’s Anti-SLAPP statute. Bill 444 swiftly passed in the State Senate 21-0.

After significant pushback from supporters of the Anti-SLAPP law, including a vigorous debate before the Assembly Judiciary Committee, the bill was significantly amended. Most of the language gutting the anti-SLAPP law was removed in the amended version, leaving the bill with only two minor procedural changes. For now, the Nevada anti-SLAPP statute is safe and other legislatures in Colorado and Washington are preparing for a similar process.

If you or your organization have been threatened with a defamation lawsuit, or if you would like to learn how to create safeguards to minimize the risks of such a lawsuit, please contact Ward & Ward PLLC for a consultation with one of our attorneys. From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, nonprofit, and commercial clients with various First Amendment issues.

The Intersection of Free Speech and Trademark Law

We recently discussed the convergence of Anti-SLAPP laws and copyright law. As ongoing litigation in the Federal Circuit demonstrates, the First Amendment also intersects intellectual property law in the context of trademark rights.

In April, the Federal Circuit upheld the U.S. Patent and Trademark Office’s denial of trademark registration for an Asian-American band called “The Slants.” The Court reasoned that denying registration for a “disparaging” trademark as defined by the Lanham Act did not amount to a First Amendment violation since the “PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed.” A week later the earlier opinion was vacated and the Court voted for a sua sponte en banc hearing for another chance to answer this constitutional question: whether denying registration for a  “disparaging” trademark violates the First Amendment.

More recently, in what the Consumer Law & Policy Blog called “Another Important Win for Free Speech,” the Fourth Circuit, in Radiance Foundation v. NAACP, held that the Radiance Foundation’s characterization of the NAACP as “National Association for the Abortion of Colored People,” did not infringe on the NAACP’s trademark rights. Citing New Kids on the Block v. News Am. Publ’g, Inc., the Court held that if such a characterization constituted trademark infringement, “many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, ‘it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purposes without using the mark.’”

The line of demarcation between Constitutionally-protected free speech and disparaging names unworthy of trademark protection will likely remain a “moving target” for years to come, and will have substantial economic impact for those that wish to keep or enforce trademarks that are viewed as “disparaging” – just ask the Washington Redskins.  Check back for further updates on this interesting intersection of free speech and trademark law.