John Oliver is right about anti-SLAPP laws, but American defamation laws still need reform

In last night’s stunning segment about HBO’s legal victory over coal magnate Bob Murray that included a musical number with line dancers, Last Week Tonight host John Oliver made a strong case for implementing anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation in every corner of the United States.

Unfortunately, he did not go nearly far enough. While anti-SLAPP legislation is indeed a necessary safeguard against businesses and large corporations terrifying critics into silence through the threat of legal action, American defamation law is badly broken: it needs to be easier to sue people for libel and slander.

This is not a contradiction: SLAPP claims tend to be meritless lawsuits with the goal of making an example of a critic by putting them through hell before the defamation claim is defeated. But, this doesn’t address the problems of lawsuits that have merit but are rendered unwinnable, such as cases where somebody is labelled a member of the alt-right for not meeting the moral requirements of the far left in callout and cancel culture.

I have personal experience with this. In July 2018, the new editor-in-chief of The Escapist libelled just about everybody who had been associated with the website for the prior 5 years as being right-wing extremists, inflicting potentially career- and life-destroying consequences on around a dozen people, myself included. This resulted in my fighting a year-long lawsuit in Ontario’s Superior Court against the Escapist’s parent company, Enthusiast Gaming. The probable reason the person who made the defamatory comments — which, in a full year of Enthusiast Gaming’s access to The Escapist’s archives, could not be backed up in court — was, in his own words from his sworn affidavit, “the law of defamation [in the United States] is such that a lawsuit like the present one would not even have got off the ground.”

The problem lies with the way American defamation law interacts with freedom of speech. To avoid compromising the free speech guarantees in First Amendment, American courts tend to side with the defendant in matters that are of public interest, treating opinion as protected speech regardless of whether it is accurate to encourage public participation. This allows somebody to make damaging comments about a person or group of people and then avoid legal repercussions by claiming that the comments fall under “opinion.”

For comparison, in Canada there is a defamation defence for statements of opinion called “fair comment,” two of the requirements of which is that the opinion stated must be based on facts and that it must be an opinion that a reasonable person could draw from those facts. As such, in Canada one cannot make a damaging statement about a person or group of people and then hide from legal consequences behind their statement being just an opinion.

American law is right to be concerned about chilling effects, which can stifle the public discourse about critical matters. However, the lack of safeguards against defamatory comments in public matters has the same chilling effect — the far left, in particular, has used de-platforming as a tactic against many people holding a rightwards-leaning opinion, regardless of how moderate. This tactic would be made much more difficult, if not crippled, if those making statements to deplatform opponents have to fear being called upon to justify those statements in a court of law.

Anti-SLAPP laws across the United States are a good start, but more needs to be done. The defamation laws themselves need to be reformed to put an end to “opinion” alone as a protection against legal consequences.