Opinion: S.C. Senate should shield free speech

When Kevin Hennelly read a news article in 2017 about an effort to rezone a Hilton Head golf course to allow a sprawling residential and commercial development, he posted an online comment criticizing his local newspaper for leaving out what he considered a crucial element: that one of the owners was a key player in an unfolding ethics scandal involving a "no-show" job for the wife of then-Virginia Gov. Robert McDonnell.

Mr. Hennelly followed that up nine days later with a similar criticism on his Facebook page. Shortly thereafter, he was served with defamation lawsuits in state and federal courts in South Carolina, Florida and Tennessee by the developer, James McGlothlin.

Three years later, S.C. House Judiciary Chairman Weston Newton told his colleagues on Tuesday, the lawsuits were dismissed as wholly lacking merit. But not before Mr. Hennelly spent those three years - and $81,000 - paying lawyers and sitting for intrusive depositions to defend himself.

The point of this story isn't to remind people that while the Congress insists on keeping Facebook and other social media sites immune from lawsuits for the things you post on your social media page, you aren't immune - although that's certainly true. Instead, it's to illustrate what free-speech advocates call a strategic lawsuit against public participation, or SLAPP, which is defined as a libel, defamation, invasion of privacy or similar lawsuit that's filed for the purpose of making people afraid to speak out on public policy matters.

These particular lawsuits, Mr. Newton said, were "clearly intended to put this gentleman on the sidelines so that he wouldn't speak out on a project that he was not in favor of."

This might not be the best illustration of a SLAPP, since Mr. Hennelly did actually write things that someone unschooled in the law might consider defamatory. The more common problem is when someone expresses a negative opinion about something a particularly deep-pocketed or thin-skinned special interest is pursuing. For that kind of SLAPP, you might recall the lawsuit a Midlands school board member filed claiming that it was libelous for voters to refer to him on a social media site as "crooked Ken," "unethical," a "liar" and "one of the dumbest people in the district." That is, garden variety opinions that, by definition, cannot be considered libelous.

What distinguishes Mr. Hennelly's case is that it attracted the attention of a powerful S.C. House member, who has filed legislation to add South Carolina to the 33 states that already try to deter deep-pocketed special interests from chilling free speech by filing these strategic lawsuits that lack merit and that are doomed to eventually be dismissed.

Under current S.C. law, a defendant eventually has the opportunity to move to dismiss a case because it doesn't have a legitimate legal basis, and to keep it alive, the plaintiff has to demonstrate that it does. But that often comes years into a case, after the innocent target has had to spend tens of thousands of dollars. H.4274 provides what Mr. Newton calls "an early exit ramp for lawsuits that are otherwise without merit," allowing the defendant to file that motion within 60 days after a suit is filed, pausing pending depositions and motions while the judge determines if the suit is legitimate.

"This is a shield, not a sword," Mr. Newton said. "I can ask the court to hear an early motion in the first 60 days after the lawsuit is filed. This is a way to protect the little guy against the big interests who can sue someone in three or four states to shut them up."

The legislation - which the House passed unanimously and sent to the Senate - allows the target of the lawsuit to recover attorney fees if the judge dismisses the suit. The Washington-based Institute for Free Speech says such provisions increase the chance that a defendant "with limited financial resources who faces a SLAPP will be represented by an attorney" and thus more likely the lawsuit will be dismissed.

The bill wouldn't protect defendants who post unflattering restaurant reviews. It would apply only to cases that involve matters "under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding" or that involve our constitutionally guaranteed freedom of speech "on a matter of public concern." But then, that's what the First Amendment was meant to protect.

It also seems not to apply when a government official files the lawsuit - which is the closest thing we see as a shortcoming, given the growing number of thin-skinned elected officials who sue a constituent for saying mean things about them.

The Senate should eliminate that limitation. And then it should pass the bill because special interests have enough advantages already, without being able to abuse our legal system in order to silence those who dare to speak out against them.

This editorial was originally published by the Post and Courier on Monday, April 1.