Anti-SLAPP laws protect Davids from being silenced by Goliaths

The First Amendment was born out of colonial attempts to silence the press with libel laws. Yet more than two centuries later, the wealthy and powerful still use the legal system to bully critics into submission through meritless defamation lawsuits — also known as strategic lawsuits against public participation, or SLAPPs.

One recent example comes from Seymour, Indiana, where attorney Brett Hays sued local resident Anthony Couch over things Couch said on his Facebook page, Seymour Immigration. The page calls itself a “media/news company” and says it aims to “show the destruction of Seymour IN brought on by the illegal immigration problem in Seymour IN and the nation.” 

Couch wrote that Hays “is making a killing on representing illegal immigrant crimes” and quoted Hays’ website, which stated, “Even undocumented individuals have rights which they can and should exercise,” offering to help them understand those rights. In a separate post that didn’t mention Hays, Couch wrote, “Notice most if not all are listed as WYTE….this is how they keep the immigrant crime numbers down.” Hays says Couch’s posts, which accuse him of professional “misconduct and unfitness,” are false and damaging — so he’s suing Couch for defamation and wants a judge to make him take down the posts.

But those posts are actually a textbook example of protected opinion. Hays doesn’t deny that he defends people accused of crimes or that his website offers help to undocumented immigrants. Couch’s take, that Hays is “making a killing,” is just an opinion and a common figure of speech, not a factual claim that can be proven true or false. The First Amendment protects this kind of criticism, regardless of whether it is fair, eloquent, or well-reasoned. 

The court sided with Couch for now, denying Hays’ request for an emergency order that would’ve forced Couch to delete his Facebook posts. In its decision, the Court said Couch never claimed “that Hays committed any act of incompetence as an attorney,” and that the phrase “making a killing” is “at worst hyperbole or a snide comment.” The court also noted that the other statement Hays complained about didn’t even mention him by name, and appeared to be a complaint about the legal system in general. In response to Hays’ lawsuit, Couch filed an anti-SLAPP motion — a move to dismiss lawsuits meant to silence speech — which the court hasn’t yet ruled on.

SLAPPs like this are filed fairly routinely. FIRE has defended multiple speakers against SLAPPs and SLAPP threats. One of our clients, Iowa pollster J. Ann Selzer, was sued by President Donald Trump for “election interference” and violations of the Iowa Consumer Fraud Act after her 2024 pre-election poll showed Kamala Harris leading Trump by three points — despite Trump ultimately carrying the state by more than 13. In fact, a federal court just dismissed a copycat lawsuit filed against Selzer by a subscriber to The Des Moines Register, styled as a class action, which FIRE also defended.

To combat this weaponization of the courts, often by those with significant power and resources, many states have enacted anti-SLAPP laws. These laws protect journalists, news organizations, and ordinary citizens who publicly voice their opinions, expediting the dismissal of meritless defamation lawsuits before they drain defendants’ time and money. As of now, 38 states plus Washington, D.C. have anti-SLAPP laws on the books.

The strength of anti-SLAPP protections varies by state, but most follow the same two-step process. First, the individual being sued files a motion to strike the SLAPP, arguing that the case targets their speech on an issue of public concern. If they can show that, the burden flips: the plaintiff then has to prove their lawsuit actually has merit. 

Think of it as an expedited mini-trial that lets judges quickly toss out frivolous claims and spares defendants the time and court costs of full-blown litigation. If the plaintiff can’t make their case, the lawsuit gets tossed — and in many states, the plaintiff has to pay the defendant’s legal fees. That fee-shifting rule discourages people from filing bogus suits and encourages lawyers to take on free speech cases for clients who otherwise would not be able to afford defending themselves.

While the Selzer case is high-profile given the parties involved, SLAPPs involving everyday Americans like Anthony Couch are all too common — and far less visible. Thankfully, Indiana not only has an anti-SLAPP law on the books, but one robust enough to earn a B+ rating from the Institute for Free Speech. Under that law, discovery is paused once the defendant files an anti-SLAPP motion, and successful defendants can recover attorney’s fees. However, if the anti-SLAPP motion is deemed frivolous, the defendant must pay the plaintiff’s attorney’s fees instead.

The anti-SLAPP hearing in Couch’s case has been set for Feb. 20. Indiana’s strong anti-SLAPP protections give defendants like Couch a fighting chance to avoid costly, drawn-out litigation and hold would-be censors accountable for misusing the judicial process to suppress criticism. The fee-shifting provision may also encourage local attorneys to represent Couch, who is currently defending himself, and other unjustly targeted speakers. 

The Seymour Immigration page remains active, and Couch does not seem deterred by the lawsuit, likely buoyed by the protections Indiana law affords. But without those safeguards, his story might not be one of defiance, but of silence.

FIRE defends the individual rights of all Americans to free speech and free thought — no matter their views. FIRE’s proven approach to advocacy has vindicated the rights of thousands of Americans through targeted media campaigns, correspondence with officials, open records requests, litigation, and other advocacy tactics. If you think your rights have been violated, submit your case to FIRE today.