Police SLAPP Lawsuits Against Online Commenters
Over the past year, we have encountered a huge wave of SLAPP (strategic lawsuit against public participation) suits filed by the police against individuals who have spoken out against them on Facebook (over the course of the past year, dozens of lawsuits have been filed against over 100 defendants). The lawsuits were submitted using an almost automated, assembly line system: in each case, the complainant was one or more police officers who were filmed using violence or behaving recklessly during interactions with civilians. In almost every instance, those targeted with the SLAPP suits were Facebook users who commented on posts containing footage of these incidents. Each lawsuit was submitted by the same law office, and the wording is nearly identical. The defendants (3-5 in every lawsuit) were selected at random from a list of hundreds of users who commented on the post.
On January 14, 2021, we submitted amicus brief requests to join the proceedings in 16 of these SLAPP suits. These requests were submitted so that all of these suits would be judged within the shared context of the broader aspects of this phenomenon.
In our request, we argued that despite the controversial comments made by some social media users (including some of the most crude and crass obscenities), the scale tilts toward freedom of expression for a number of reasons:
a. Chilling effect: this massive wave of SLAPP suits reveals a systemic response, the purpose, or at least the outcome, of which is to commit a fatal blow to freedom of expression around a matter of major public concern – namely, police violence. The lawsuits convey a clear message to civilians, in general, and to activists resisting police violence in particular: participation in public discussion is dangerous and threatens to exact a high personal cost, so it’s preferable to “sit silently” and take no part. A number of characteristics in this current wave of police-initiated lawsuits are clear identifiers of the known strategy of “silencing suits.”
b. Extending heightened protections to speech on social media: the ruling recognized the unique nature of the internet and social media as universally accessible mass-communication platforms. Social media is full of vital and varied content, which includes the expression of harsh opinions and biting criticism. Alongside the heightened protections that the ruling affords to speech published on social media, the ruling recognized the negligible influence of many of these public expressions, as they get “swallowed up in the mass.” A comment on a Facebook post is the lowest rung on the ladder of influence and exposure when it comes to published content. A comment is not akin to a personal expression on one of the established media platforms; a small amount of people are exposed to it, especially when it’s swallowed up in the midst of hundreds of other comments, making it nearly impossible to locate thereafter. Its essence and impact are thus more akin to a person speaking to an empty room than the public.
c. Freedom of expression extends to insults and obscenities, which are considered protected speech: the constitutional right to freedom of expression applies, perhaps even more so, to unconventional, controversial, and revolting speech. The courts have extended protections to insults and obscenities, especially regarding platforms for online expression on public matters that provoke feelings of frustration, pain, and anger.
Attornies: Avner Pinchuk, Anne Suciu
For further information (Hebrew)