Jack Greiner, partner of Faruki PLL
I was asked this month to testify before the Ohio House Civil Justice Committee in support of Ohio Senate Bill 237. The bill is titled the “Uniform Public Expression Protection Act.” It is more commonly referred to as Ohio’s Anti-SLAPP law.
A ‘SLAPP’ is a ‘strategic lawsuit against public participation’. What it refers to is a lawsuit filed by someone with deep pockets to prevent citizens from speaking on matters of public interest.
The lawsuits have no merit, but by the time the court reaches that conclusion, citizens will be forced to spend thousands of dollars and hundreds of hours defending themselves. The proposed legislation (which is the law in 33 states) provides for an expedited process for deciding the merits and dismissing the lawsuit.
In my opinion, we have needed this law for a long time, but we may need it even more in the future. Here is my testimony.
My name is Jack Greiner. I am a lawyer at the Faruki law firm. I have been working in the field of media law and the First Amendment for almost 30 years. I don’t intend to dwell on the merits of SB 237, as they are obvious, and others have spoken about them better than I have.
Today I would like to talk about why this legislation is needed now and in the future. Ohio has been a leader in ensuring that its citizens enjoy speech protections that, in some cases, extend even beyond those provided by the U.S. Constitution. For example in the case of Milkovich to Lorain Journalthe United States Supreme Court ruled that there is no special constitutional privilege for opinions; however in the case of Vail v. Plain Dealer Publishing Companythe Ohio Supreme Court ruled that the four-factor test for determining whether an opinion privilege would exist remained the law in Ohio, despite the Melkovitch to cling.
Additionally, Article 1, Section 16 of the Ohio Constitution contains a guarantee that the courts are open to the public. The Constitution of the United States provides no such express warranty.
SB 237 continues this tradition of protecting speech. The bill protects citizens’ right to speak truth to power, free from the fear of crippling lawsuits. As appropriate as this legislation is today, it is possible that there will be an even greater need for it in the not-too-distant future. I say this based on my concern that the protection afforded by the 1964 US Court ruling is being jeopardized New York Times v. Sullivan may not survive.
The has been around for 60 years New York Times v. Sullivan The case has imposed higher burdens of proof on officials and public figures filing defamation lawsuits. But we know from Justice Clarence Thomas’ concurring opinion in the 2019 case McKee vs. Cosby that there is concern among certain judges that the New York Times decision was “[a] policy-driven decision masquerading as constitutional law.” More recently, Justice Neil Gorsuch has called for a reexamination of New York Times v. Sullivan. If we put aside the merits of these arguments, if New York Times v. Sullivan is struck down, the protections provided by SB 237 will be critical to the rights of Ohio citizens to speak freely.
For reasons that exist today and that may exist in years to come, I urge the passage of SB 237.
Jack Greiner is a partner at the law firm Faruki PLL in Cincinnati. He represents Enquirer Media in First Amendment and media issues.
This article originally appeared on Cincinnati Enquirer: Opinion: Ohio Anti-SLAPP Legislation Moves Forward | Strictly legal
