EDITORIAL: Wisconsin is a laggard on a needed free speech guard

A few years ago, the Wisconsin Legislature was ranked the least productive in the nation based on hours in session and legislation passed. The lawmakers have picked up the pace a bit since then, but on some needed laws they still can’t get the job done.

In February, the Assembly finally passed a bill that had been pending for almost three years and did so with such enthusiastic bipartisan support that it was approved by a voice vote. Then the bill moved on to the Senate, where it was ignored and then left to die when the senators adjourned and went home, not to return to Madison until January.

The abandoned legislation is known as the anti-SLAPP law. The acronym maybe cumbersome (standing for Strategic Lawsuit Against Public Participation), but the law’s meaning is clear—to provide protection against baseless lawsuits intended to punish people and institutions exercising the right of free speech.

Thirty-nine states already have anti-SLAPP laws, which goes to show that this free-speech shield transcends politics with its enthusiastic support by conservatives and liberals. In two Midwestern states, Michigan and Ohio, anti-SLAPP laws were passed without a single nay vote. In Wisconsin, the bill was introduced by Democrats, and when the Assembly got around to acting on it, the Republican majority voted for it, a rarity in the often bitterly polarized Wisconsin Legislature.

The laws are in effect in all but 11 states because they are needed. Lawsuits filed to punish and silence critics by forcing them to bear the often staggering cost of defending themselves even though the suits would eventually be dismissed for lack of merit have become a common tactic. Such lawsuits were once called frivolous. A Wisconsin Republican assemblyman used a better term—“abusive litigation.”

Wisconsin has seen the tactic used in a number of cases. One of the most revealing examples of the power of such lawsuits to inflict injury involved a nonprofit news organization and a state senator in Marathon County.

The Wausau Pilot and Review reported, with verification by several sources, that the legislator, at a County Board meeting before he was elected to the Senate, was heard calling a 13-year-old boy a “fag” in a debate over a resolution affirming diversity in the county.

The legislator sued publisher Shereen Siewert for defamation. A Marathon County court dismissed the suit and the Wisconsin Court of Appeals dismissed the plaintiff’s appeal. The process took three years, leaving the publisher who “won” the case with legal bills of more than $200,000.

The lawsuit caused emotional as well as financial pain for Siewert, who was personally named in the suit and was facing bankruptcy.

“I had serious conversations with my son about selling my home if I couldn’t pay my legal bills” she said. “I’m 56 years old and am about to lose everything.”

It is not just journalists who can be targets of this abuse. Anyone can be sued for defamation, as is currently on display in Milwaukee, where a young couple is being sued for giving their landlord a negative review on Google. In their one-star review, the couple complained about unexpected fees charged by the owner of their apartment. Now they face the cost of defending themselves as individuals of modest means against a legal action brought by a company that manages a number of properties in Wisconsin and Illinois and has an owner who is not likely to be bothered by legal fees—he’s a lawyer.

This case and others like it elsewhere in the U.S. illustrate the importance of the civic participation protection provided by anti-SLAPP laws.

But, as things stand in Wisconsin, expensive litigation remains a handy expedient to silence the public and journalists without overt conflict with First Amendment rights.

The bill the Senate would not deign to consider established a framework for allowing judges to quickly dismiss weak lawsuits aimed at stifling protected speech. It required quick hearings and a process to avoid discovery, typically a major expense. Under the law, judges could order plaintiffs to pay defendants’ court and attorney fees.

It should have been a law. Now, at best, it’s an item on the to-do list legislators might address when they go back to work next year.