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From the President's Desk
September 2010

SLAPPed and Still Standing Tall!

If I could arrange it, a trumpet blast would accompany this column, which I write in admiration of an ASJA member and an attorney who helped him. Christopher Elliott is a brave, resolute man as well as an insightful journalist. He just came through a defamation suit designed to punish him, drain him financially, and most of all, to scare other writers into silence.

Chris, a Florida freelancer, writes a weekly column for The Washington Post travel section and one for National Geographic Traveler magazine. He also writes for MSNBC.com and others, and has a widely read travel blog. It was one of his blog posts that garnered the suit.

Please note that according to your board, ASJA's First Amendment Committee, the Reporter's Committee for the Freedom of the Press, and the Legal Defense Fund of SPJ, the suit was never worth a box of hair. It has now been withdrawn, I am glad to say. However, it gave Chris six months of anxiety and left him with a whopping bill for his legal defense. That was the intent of the suit: harassment, plus shutting down any other writers who might write something a corporation doesn't like.

Chris got SLAPPed. The terms stands for "Strategic Lawsuit Against Public Participation," a definition coined by two professors at the University of Denver in the 1980s. For a couple of decades it was mostly whistleblowers who got SLAPPed. In the last decade, corporate bullies have begun using it as a way to silence journalists.

Any journalist could be a target, but if you freelance, the word "prey" might as well be written on your forehead. Make the letters bigger if you blog.

Chris wrote a blog post about a Florida-based travel agency that was having some troubles meeting the state's legal requirements. His information came from a privileged source, a spokesperson for the state government. Unfortunately, the official got it wrong -- not totally wrong, but he was imprecise.

Sometimes by tradition and sometimes by state law (not yet by a federal shield law), reporters and publishers are not held responsible for false information deliberately given them, or for inaccurate information from an official source. That especially is the case when the error is noted and corrected in a timely manner.

Blogging is the gray area here. Is a blog a legitimate news outlet? Some blogs are by hobbyists writing to be read by Aunt Susan and 11 friends. Others, like the one Chris writes, are a mix of reporting and essay, and clearly are written by professionals. That is why so many journalists' groups supported him.

This was a breaking story. The imprecise information, complete with attribution to the state official, was up for a matter of hours before being amended with an explanation and an apology. The correction didn't take away the fact the company was having "issues." It clarified them -- it wasn't a hangnail on the right pinkie, it was an ingrown toenail on the left, big toe.

Now, you would think the travel agency so named would have recalled P.T. Barnum's famous comment about there being no such thing as bad publicity, if they spell your name right. Or that it might take the opposite view, "least said, soonest mended." But, no.

SLAPP suits are not subtle. The plaintiff is thinking, "If I kick this person hard, everybody else will sprint off the playground, before I kick them, too." Claire Safran, a former ASJA president and chair of our First Amendment Committee, notes that "threatening costly litigation in an effort to squelch free speech is an abuse not only of the First Amendment but also of the judicial process."

As the months went by, Chris was resolute. He also was courageous: The posts outlining the matter stayed up.

His attorneys were ASJA's own counsel in most matters: Anthony Elia, who practices in New York, and Gregory Herbert, of the West Palm Beach firm, Greenberg Traurig. By my lights, Greg Herbert also is a hero. He took the case knowing he likely would never be paid, or paid in full.

On behalf of all ASJA members, thank you, Greg.

Friends, what happened to Chris can happen to any of us. You are particularly vulnerable if you blog on your own site and do serious, fact-finding journalism, rate one product against another, or review and comment on anything from movies to candy bars to cribs. You would appear to be somewhat less vulnerable if another entity runs a story you've written, but only in the sense that the risk is spread out, like ripples in a pond. It is not eliminated.

We've always known that anybody can take umbrage at what we've written in X magazine or on Y website, hire a lawyer, and sue. But the universe of crazies with enough money to do that is limited. The universe of corporations with zealous counsel is far larger.

Among the few gems I retained from my days in the University of Texas at Austin J School is that truth is not always an absolute defense against libel and defamation. What nobody ever mentioned back then was that even if you stand as righteous as the angel Gabriel or Christopher Elliott, you will be left holding one bodacious legal bill when the suit goes away or you win. That was true even before SLAPP suits.

Chris says that being sued like this has changed his life -- and that he is now an enthusiastic backer of the proposed federal anti-SLAPP law. Some 29 states have passed anti-SLAPP suit laws, but not all of them apply to us members of the press. There is a bill in the U.S. House of Representatives, H.R. 4364, that appears to offer some protection.

As you know, ASJA rarely takes a position on pending legislation, because we endeavor to stay non-partisan. Sometimes, however, an issue affects all writers so squarely that we must take a stand or fail our members. I shall ask your board to consider whether supporting H.R. 4364 is one of those issues. If the board agrees, I will ask Chris to speak for ASJA as well as for himself when he testifies and lobbies Congress, which he intends to do. The honor would be all ours.

Salley Shannon has sworn off lawyer jokes and just bought a media perils insurance policy through ASJA. Write her: president_AT_asja.org.