This piece originally appeared in The Toledo Blade on June 12, 2024.
As a former Ohio judge, former Ohio deputy attorney general, and a current free-speech litigator, I want our state’s laws to offer strong protection for our citizens’ First Amendment rights.
Unfortunately, Ohio currently fails that goal in one critical way, putting our rights to speak or publish at significant risk.
The good news is that there is legislative momentum to close this gap.
Today, Ohio provides no legal protections against strategic lawsuits against public participation, or “SLAPPs.”
This key threat to free speech allows wealthy individuals or businesses to file frivolous lawsuits targeting speech they don’t like.
These plaintiffs typically claim that the speech constitutes defamation, suing speakers solely to harass, silence, and force them to bear significant litigation costs.
SLAPPs can attack speech on any matter of public concern — from a hot-button political issue to an online review. SLAPP plaintiffs can use the costs, time, and stress associated with defending frivolous suits to censor speech. Worse, the mere threat of a SLAPP can “chill” future speech by intimidating other would-be speakers from saying anything in the first place.
Ohio’s lack of an anti-SLAPP statute puts it at odds with a national trend of creating and enhancing such protections. In fact, as the Institute for Free Speech’s recent 2023 Anti-SLAPP Report Card revealed, Ohio is one of just 17 states that still have no protections against SLAPPs. And, for the first time, most Americans now have good protections against SLAPPs, meaning living in a jurisdiction with a “B” or “A” grade in the report.
Our state lags behind most of the rest of the country. Ohio posted a grade of “F,” earning the worst possible score: zero out of 100 points. By comparison, bordering Indiana checks in with a solid “B+” grade and a score of 85, while Kentucky boasts an impressive “A+” and a perfect score of 100.
This is an embarrassing situation for Ohio — but there’s hope: State Sens. Theresa Gavarone (R., Bowling Green) and Nathan Manning (R., North Ridgeville) recently introduced Senate Bill 237, known as the Uniform Public Expression Protection Act, or UPEPA.
UPEPA laws have helped usher in the positive shift toward states protecting speakers against SLAPPs. UPEPA originated as a model statute from the nonpartisan Uniform Law Commission in 2020.
Six states, including Kentucky, have already used UPEPA to enact new or improved laws just since the 2022 edition of the Anti-SLAPP Report Card.
Like other laws modeled after UPEPA, Ohio’s proposed version contains critical provisions that deter SLAPPs and minimize litigation costs for defendants. These provisions require plaintiffs to show they have a legitimate case early in the proceedings and provide defendants with a right to an immediate appeal if the court denies the anti-SLAPP motion.
These laws also permit a winning defendant to recover an award of costs and attorney fees and instruct judges to interpret the law’s speech protections broadly.
As a former appellate judge, I can attest that it often takes many years before a defendant can obtain an appealable decision from a trial court, allowing a reviewing court to decide whether a case was frivolous “lawfare” from the outset. Changing this, and requiring a losing plaintiff to bear a winning defendant’s attorney fees, will greatly deter SLAPPs, enhancing the First Amendment rights of all Ohioans by affording robust free speech protections that shield speakers from the wealthy and powerful. I hope that Ohio lawmakers will work together to swiftly pass UPEPA. This legislation is crucial for defending the sacred right all Americans have to speak out on matters of public concern.
UPEPA will ensure that Ohioans can exercise that right, with strong protections against those who would weaponize litigation to punish them for speaking.
Mr. Miller is a senior attorney at the Institute for Free Speech and an Ohio resident. He formerly served as a judge on the 1st District Court of Appeals, and as deputy attorney general for major litigation.
