Rakofsky — Poster Child for Anti-SLAPP

Posted in Blogging

Rakofsky vs. the Internet - squareOn Friday, the long-running saga known as “Rakofsky vs. the Internet” came to an end.  Unsurprisingly, Rakofsky’s case was dismissed.

I was drawn into the case as a defendant after writing a post commenting on the Streisand Effect implications of Rakofsky filing a defamation suit.  My post – besides being entirely non-defamatory – was also well-taken (it’s also now gone, thanks to a relaunch of Avvo’s corporate blog).  As Jordan Rushie notes, Rakofsky has pulled off a full Streisand both in filing the case and his handling of it along the way.

While I could have sat back in Seattle, I elected to join a group of co-defendant bloggers (Rakofsky sued nearly 100 different parties) represented by my friend and First Amendment badass Mark Randazza.  It seemed more cost-effective (and collegial) than hiring my own counsel in New York to seek a dismissal on jurisdictional grounds.  I’m glad I did it, and not just because I got to go along for the ride with my fellow legal bloggers, Randazza, and New York lawyer Eric Turkewitz, who pulled a more-than-laboring oar as local counsel for our group.

So why else was I glad?  Because “participating” as a defendant in this case offered a ringside seat to the gulf in process – and effective defense of first amendment rights – that exists between states that have meaningful anti-SLAPP laws and those that do not.

Like New York.

SLAPP suits are typically claims based on defamation, and filed not so much to get damages as to convince the defendant that it’s better to shut up than to face the cost and uncertainty of litigation. Strong anti-SLAPP laws, such as those in Washington, California, Texas and the District of Columbia, allow anyone facing such a suit to immediately move to strike the complaint.  If successful, the defendant is entitled to attorneys’ fees and, in some states, a statutory penalty.

If New York had a statute like Washington’s, Rakofsky’s case would have been dismissed nearly two years ago.  Or it would never have been filed.  Strong anti-SLAPP protection disciplines the filing process, by offering the near-certain prospect of a judicial shovel-to-the-head of anyone unwise enough to pursue a frivolous defamation claim.

Instead, we witnessed the endless churning of a case made doubly difficult by the number of parties and the ineptitude of quasi-pro-se plaintiff Joseph Rakofsky.  We saw a number of other defendants settle (including, inexcusably, the University of St. Thomas School of Law), removing what they’d written from the public eye. The long latency of the case undoubtedly had some level of chilling effect on even the normally-outspoken group of legal bloggers in our joint defense group.

In short, we saw everything that militates for anti-SLAPP protection: costly, time-consuming litigation and the suppressing of free speech that the prospect of such litigation engenders.

It’s surprising that New York, media capital that it is, doesn’t have strong anti-SLAPP protection.  Those in New York should push for such laws; after all, the robust anti-SLAPP laws in Washington, Texas and D.C. have all come up from the grassroots and been enacted in the past three years.  And all were put in place with broad bipartisan support.

Or better yet: back the efforts of the Public Participation Project to enact anti-SLAPP legislation at the federal level.  Supporting free speech and keeping the courts clear of garbage litigation – it’s a proposition that all lawyers should get behind.