A View from the First Amendment Trenches: Washington State's New Protections for Public Discourse and Democracy

• Publication year: 2021

A VIEW FROM THE FIRST AMENDMENT TRENCHES: WASHINGTON STATE'S NEW PROTECTIONS FOR PUBLIC DISCOURSE AND DEMOCRACY

Bruce E.H. Johnson and Sarah K. Duran(fn*)

Abstract: In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of "democratic legitimation" as the cornerstone of democratic decision making. Dean Post defines "democratic legitimation" as "all efforts" to influence "public opinion."(fn1) As Post explains, "[d]emocracy requires that government action be tethered to public opinion" because "public opinion can direct government action in an endless variety of directions."(fn2) As a result, First Amendment coverage should extend to all communications that form public opinion, he contends.(fn3) Those who object to speech aimed at influencing public opinion have learned they can file a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of the SLAPP suit is to impede efforts to influence public opinion by intimidating the speaker with expensive and lengthy litigation. Since the late 1980s, states have reacted to SLAPP lawsuits by enacting anti-SLAPP statutes. Washington State has had a statute in place since 1989 that protects speakers from litigation resulting from statements made to government officials. In 2010, the Washington legislature expanded those protections by enacting Revised Code of Washington 4.24.510, which more broadly protects speakers who comment on matters of public concern. This Article reviews Dean Post's theory of democratic legitimation and then looks at statutes across the nation and in Washington that are aimed at protecting speakers from litigation that seeks to chill the First Amendment rights of citizens who comment on matters of public concern. The Article concludes that Washington's new statute promotes Dean Post's goal of democratic legitimation.

INTRODUCTION

This Article provides observations from two lawyers whose practices focus on defending the free speech rights of those citizens whose speech comprise "democratic legitimation," as described by Dean Robert Post in his book Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. Post describes "democratic legitimation" as necessarily including "all efforts" to influence "public opinion."(fn4) It is a First Amendment doctrine that values the opinions of all citizens, a doctrine that Post believes is the cornerstone of democratic decision making. As Dean Post explains, "[d]emocracy requires that government action be tethered to public opinion" because "public opinion can direct government action in an endless variety of directions."(fn5) As a result, First Amendment coverage should extend to all communications that form public opinion, he contends.(fn6)

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."(fn7) Despite these lofty ideals, as practitioners we are all too aware of statutory and common law restrictions on free speech.(fn8) Some people use these statutory and common law restrictions as weapons to intimidate speakers, by filing baseless lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP).(fn9) The strategy is to file weak claims with the goal of silencing speakers because they fear the expense and travails of litigation. Ordinary citizens-not to mention experts and academics-are less likely to participate in or contribute to democratic legitimation if they fear their speech will be punished or subject to expensive litigation. SLAPP lawsuits are filed to discourage people from public discourse on an unlimited variety of topics, such as a housing development under consideration in their neighborhood, a candidate running for office, or a story that has made the news headlines.(fn10) The good news is that Washington State, and numerous other states, have recognized the fundamental importance of protecting public discourse from SLAPP claims.

Washington led the nation in 1989 by passing the first anti-SLAPP statute, codified at Revised Code of Washington (RCW) 4.24.510.(fn11) The statute allows a defendant to bring a motion to defeat the plaintiff's SLAPP claims and to recover fines and attorneys' fees for the cost of defending against the SLAPP claim.(fn12) However, the statute's protections are limited to statements made to government officials in the course of government decision making.(fn13)

Recognizing the limitations on Washington's old statute, the Washington Legislature in 2010 enacted RCW 4.24.525, which significantly expands protections for the free speech rights of individuals, government entities, and others.(fn14) We were involved in drafting the law and urging its enactment. The new law has four goals: (1) to provide as a matter of substantive law a statutory immunity for statements (and expressive conduct) on matters of public concern, where the plaintiff is unable to establish a prima facie case supporting his or her cause of action; (2) to furnish a suggested procedural framework that encourages and facilitates prompt and inexpensive resolution of such SLAPP claims; (3) to provide a right of immediate appeal of a trial court's ruling on an anti-SLAPP motion; and (4) to require appropriate reimbursement for the targets of SLAPP lawsuits through an award of reasonable attorneys' fees and a $10,000 sanction.(fn15)

In this Article, we offer our experience with anti-SLAPP legislation and lawsuits to explain how the law protects public discourse and furthers a key First Amendment value. While we agree with Post's warning that it may not be "helpful for constitutional lawyers to venture into . . . epistemological thicket[s],"(fn16) constitutional lawyers have confronted and addressed the risks to democratic legitimation of a fearful citizenry, hesitant "to speak, write, and publish on all subjects"(fn17) because of the threat of meritless lawsuits. We hope to show where the First Amendment rubber meets the road, at least here in the Pacific Northwest. To do so, this Article will focus on the anti-SLAPP statute as one aspect of lawmaking that protects speakers who contribute to public discourse and democratic legitimation.

This Article is divided into four subsequent parts. Part One reviews and analyzes Post's theory of First Amendment jurisprudence, focusing on his theory of democratic legitimation. Part Two considers the state of anti-SLAPP statutes nationwide. Part Three explores Washington's first anti-SLAPP statute, RCW 4.24.510, and the statute's limitations for protecting public discourse. Part Three also examines Washington's new anti-SLAPP statute, RCW 4.24.525, and its greater protections for public discourse. Finally, Part Four argues that broad anti-SLAPP statutes such as RCW 4.24.525 play an important role in Post's democratic legitimation by protecting speakers who contribute to public discourse. To safeguard public discourse, and thereby foster democratic legitimation, states should follow Washington's lead by enacting broad anti-SLAPP statutes.

I. POST'S THEORY OF FIRST AMENDMENT JURISPRUDENCE: PROTECTING PUBLIC OPINION AND A CONFLICT BETWEEN DEMOCRATIC LEGITIMATION AND DEMOCRATIC COMPETENCE

Post defines public discourse as "the forms of communication constitutionally deemed necessary for formation of public opinion."(fn18) Post notes that a recurring theme in First Amendment doctrine is the emphasis on matters of "public concern."(fn19) Thus, Post reminds us that a touchstone of First Amendment coverage is:[W]hether communication involves public officials, or public figures, or matters of public concern, or is directed to the general public, [which] derives from the conviction that, as Learned Hand put it, "public opinion . . . is the final source of government in a democratic state." "Public opinion," said James Madison, "is the real sovereign in every free" government. The function of the First Amendment is to safeguard the communicative processes by which public opinion is formed, so as to ensure the integrity of "the great process by which public opinion passes over into public will, which is legislation."(fn20) In short, the purpose of the First Amendment is "to protect the free formation of public opinion that is the sine qua non of democracy."(fn21)

Post explains that American democracy rests on the value of self-government, the idea that those who are subject to law should also see their own hand in the creation of the law.(fn22) Democracy in the United States supports this value by making government decisionmaking responsible to public opinion and "guaranteeing to all the possibility of influencing public opinion."(fn23) Allowing people to participate in forming public opinion is essential to democratic values: "[I]f persons are prevented even from the possibility of seeking to influence the content of public opinion, there is little hope of democratic legitimation in a modern culturally heterogeneous state."(fn24) Post explains that "[d]emocracy requires that government action be tethered to public opinion" because "public opinion can direct government action in an endless variety of...