Free Speech in the Balance: Judicial Sanctions and Frivolous SLAPP Suits

Loyola Los Angeles Law Review, Volume 54(2): 623-674 (2021)

WVU College of Law Research Paper No. 2020-003

44 Pages Posted: 14 Feb 2020 Last revised: 28 May 2021

See all articles by S. Sean Tu

S. Sean Tu

West Virginia University College of Law

Nicholas Stump

West Virginia University - College of Law

Date Written: February 13, 2020

Abstract

The balance between free speech and access to courts in defamation tort actions is fraught with public policy concerns. On one hand, plaintiffs should have unencumbered access to the justice system to remedy real harms brought upon them by defamatory statements. However, defamation suits should not be wielded to suppress the constitutionally protected free speech rights of news organizations and of concerned citizens that are vital for well-functioning democracies. This Article argues for a new type of remedy, namely enhanced Rule 11 attorney sanctions, such as suspension or debarment, that should be available to defendants of defamation suits brought by repeat players that use “cookie cutter” complaints. This Article specifically proposes a novel four-part test implicating use of attorney sanctions as a remedy for filing niche types of frivolous lawsuits. Per this test, a court should weigh the following factors to determine if such sanctions are warranted: (1) if the plaintiff habitually files and loses defamation-type suits to prevent protected free speech; (2) the nature of the defendant, especially if the defendant is a news organization; (3) the proportionality of the damages requested, and; (4) if a countersuit is at issue.

In this Article, we examine a case study in the form of a decades’ long frivolous litigation pattern exhibited by Murray Energy and Robert-Murray-as-CEO. Murray Energy has been characterized as the single largest privately owned coal corporation in the United States, and thus constitutes a prominent actor well-suited for assessing the potential strengths and weaknesses of developing this new remedy. We ultimately conclude that enhanced Rule 11 attorney sanctions, as weighed and levied vis-à-vis the proffered test, could constitute a potentially potent deterrent to frivolous lawsuits designed to inhibit the free speech of the press and of concerned citizens—which indeed occupy a crucial watchdog role in healthy democracies.

Keywords: free speech, defamation, attorney sanctions, judicial sanctions, Rule 11, SLAPP, Anti-SLAPP, Robert Murray, John Oliver, Media, Journalism, Free speech, first amendment, frivolous

JEL Classification: K10, K13, K41

Suggested Citation

Tu, Shine (Sean) and Stump, Nicholas, Free Speech in the Balance: Judicial Sanctions and Frivolous SLAPP Suits (February 13, 2020). Loyola Los Angeles Law Review, Volume 54(2): 623-674 (2021), WVU College of Law Research Paper No. 2020-003, Available at SSRN: https://ssrn.com/abstract=3537637 or http://dx.doi.org/10.2139/ssrn.3537637

Shine (Sean) Tu (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

Nicholas Stump

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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