Yearly campaign to bolster Maryland’s weak anti-SLAPP law gets a boost from a Baltimore story
The state’s vaguely written law intended to curtail frivolous libel lawsuits is letting the powerful get away with silencing speech and stopping citizens from engaging with government, advocates say
Above: Katie O’Malley, of the Women’s Law Center of Maryland, speaks in favor of the anti-SLAPP bill introduced by (at left) Sen. Shelly Hettleman.
For more than a decade, advocates for strengthening Maryland’s law to protect citizens from baseless intimidation lawsuits have come to Annapolis yearly to point out who suffers because of them.
Victims of intimate partner violence trying to get away from their abuser. Victims of harassment or sexual assault.
“It’s the clients that we represent, mostly in the protective order cases and in the Title Nine investigations, that are the ones that are at risk” of these lawsuits, said Katie O’Malley, executive director of the Women’s Law Center of Maryland.
Likewise, individuals who comment about a matter of public importance – or engage as citizens with their government – can also be victims of malicious, costly lawsuits, she and others told a Senate committee.
In an unusual twist, this year’s sponsor had a high-profile case from Baltimore to make her case for strengthening Maryland’s law against SLAPP (Strategic Lawsuits Against Public Participation) suits.
Fells Point residents signed a petition to the city Liquor Board about “a new bar that would have had a large outdoor seating area right next to several residential backyards,” Senator Shelly L. Hettleman told the Judicial Proceedings Committee.
“It was being developed by a restaurant group with several bars in the area – and there were frequent noise complaints,” the Baltimore County Democratic lawmaker continued.
Brew readers know what happened next:
“I have a copy of the letter that went to the neighbors that was quite threatening to them and said basically, ‘Shut down your opposition or we’re going to sue you,’” said Hettleman, holding up a copy of the letter an attorney hired by the Atlas Restaurant Group mailed to signers of the petition.
Among the households that received this chilling letter was that of Maryland Comptroller Brooke Lierman.
Hettleman didn’t mention Lierman’s name. But she didn’t have to, one bill advocate told The Brew afterwards. “Everyone knows her husband was threatened with a SLAPP suit.”
Eben Hansel (Lierman’s husband), Jeanne Nevin and other residents hired their own attorneys to push back “at great expense, time and and anxiety,” Hettleman noted.
The company never filed a suit. (Though the Liquor Board ultimately approved its license transfer request, dismissing residents’ complaints about the threatening letter.)
But most people do not have the means defend themselves and wind up backing down under the pressure, reform advocates say.
The unusual situation involving Lierman has raised hopes that 2025 could be the year the bill passes.
“The comptroller, in her personal capacity, advocating for this bill is really helpful,” said Howard County attorney Tom Coale, who spoke with The Brew after testifying on behalf of SB-0167.
“I am a bit baffled at how often this law has gotten stuck [in the Senate], considering the opposition does not really show its face,” he added. “Whatever is stopping this bill, those conversations are not happening in an open committee hearing.”
(The bill has consistently in previous years been approved by the House of Delegates, but allowed to die in the Senate.)
The Brew has asked Lierman whether she supports SB-0167 or its companion bill HB-0434. She has not yet responded.
The courtyard that Atlas wanted to use for live entertainment on Thames Street. (Fern Shen)
High Cost to Defendants
Speaking to her fellow senators, Hettleman described anti-SLAPP laws as First Amendment measures, aimed at protecting “the right to healthy debate and to petition the government for redress.”
Maryland was out in front when lawmakers approved the original legislation in 2004, she said, but the state has now slid behind to the point where the watchdog group Public Participation Project gives Maryland’s anti-SLAPP provisions a “D” grade.
• Maryland lawmakers must stop the powerful from SLAPPing down free speech (5/21/24)
What distinguishes Maryland from other states, Hettleman said, is a troublesome provision that her bill would remove – it requires the defendant to show the suit was brought in “bad faith” in order to have it thrown out as a SLAPP.
“That’s a pretty unique provision in our law that is difficult and costly,” Hettleman said.
Another provision in the bill “enables attorneys’ fees to be shifted away from the defendant, which creates a deterrent to a deep-pocketed plaintiff,” she said.
The measure also requires the court to rule promptly on anti-SLAPP motions and to hold off on discovery except to the extent needed to decide the motion fairly.
This change is not meant to get around the legal process, Hettleman stressed.”It’s to allow an opportunity for a judge to make decisions at certain points along the way to find out if in fact it is a SLAPP suit.”
“It does not serve as a chilling effect to legitimate lawsuits,” she continued. “It allows those to keep going.”
For an entertaining take on SLAPP suits, watch John Oliver break it down.
O’Malley, a retired District Court judge who is married to former Maryland Governor Martin O’Malley, offered as an example the story of a Kent County woman who noticed on a public Facebook posting what she saw as “a very, very racist comment that was made by a professor at the Naval Academy.”
O’Malley was referring to the case of Mary Ella Jourdak. She tagged the U.S. Naval Academy online about comments by Gordana Schifanelli, an Eastern Shore attorney at the center of the controversy over a Black superintendent’s letter to students about Black Lives Matter.
Schiffanelli sued Jourdak for defamation, a case her pro bono lawyers eventually won at trial and on appeal.
“It was $800,000 worth of attorneys fees,” O’Malley said. “So it’s just the amount of litigation from a powerful entity that can go on without having this law here in Maryland closely more defined, especially when it comes to that bad faith.”
Schiffanelli went on to become the running mate of the unsuccessful 2022 Republican candidate for governor, Dan Cox.
Committee’s Questions
Citing the experience that prompted him to support Hettleman’s bill, Coale described the story of a Howard County blogger whose case he took pro bono.
“She commented on a petition effort, a referendum petition, and was sued the very next day, ” he said. “I entered my appearance to represent her in Circuit Court. I was sued two days later.”
Despite the plaintiff acknowledging to the court that the suit had been filed “to deter criticism of this referendum petition,” he said, the woman’s case is still pending and she is now paying for other counsel.
“This law is exactly what we need,” he continued. “We tried to have it dismissed as a SLAPP suit. The court denied that because the law is vague.”
One committee member, Senator Mike McKay of Western Maryland, read from a letter of opposition submitted by a leader of the group Maryland Right to Life.
“It says that this bill will create a large legal loophole which will enable large media outlets and others to willfully malign or defame elected officials, nonprofits and individuals, as they’ve done in the past, but now without legal repercussions,” McKay said, challenging bill supporters to respond.
Not correct, Hettleman said: “You’re still involving a judge. The judge has to make an initial ruling to ascertain whether it is indeed a SLAPP lawsuit.”
“If we pass this, it sounds like we have the reversal, a Goliath vs. David … allowing somebody to go after a corporation,” he pressed.
O’Malley said the bill aims to prevent the wealthy and powerful from weaponizing the courts to silence critics.
“This is not doing anything other than leveling the playing field,” she said.
“Am I reading this correctly?” Senator Chris West asked. “This says that if either party to this suit acts frivolously, they can end up on the receiving end of an award of attorney’s fees?”
“Yes, that was deliberate,” Hettleman said, and her questioner appeared to approve.
“I’m sure we all agree that deterring frivolous lawsuits is a good thing,” he remarked.
Previous Brew Coverage
• Atlas Restaurant Group’s plan for a new bar on Thames Street stirs anger and fear (5/13/24)
• Atlas CEO complains of “harassment” as Liquor Board approves Fells Point license transfer (5/24/24)