South Carolina Needs to Protect Free Speech With Anti-SLAPP Law
South Carolina is behind the times on free speech protections, particularly regarding protections from SLAPP lawsuits, also known as strategic lawsuits against public participation. These predatory lawsuits arise when one party levels privacy, defamation, or libel charges at individuals or advocacy groups with the intention to financially cripple them and scare them away from public criticism. Anti-SLAPP laws grant legal recourse to people involved in potentially drawn-out, massive, and expensive court proceedings. A quick motion to dismiss under anti-SLAPP enables defendants to shut down their determined, litigious opponents.
We saw one 2017 example in Charleston of how an anti-SLAPP law would benefit South Carolinians. The Charleston Animal Society posted a video of a horse named Big John collapsing in the street. Charleston Carriage Works, the owner of the horse, filed a suit alleging business interference and slander, and it took four years before a state judge ruled in favor of the Animal Society. What should have taken a few months dragged on for years, accumulating steep attorney’s fees for the non-profit Animal Society.
According to the Reporter’s Committee for Freedom of the Press, 33 other states and the District of Columbia have created some version of an anti-SLAPP law. These statutes are bipartisan, existing in conservative and liberal states alike. Some, like Massachusetts, protect only the right to petition the government. Others, such as Tennessee, enshrine rights to free association, to petition the government, and free speech; enable defendants to dismiss the case without a clear violation of plaintiff’s rights; and award the defendant attorney’s fees and costs.
South Carolina unfortunately lacks any anti-SLAPP protections, trailing behind much of the South, as well as the rest of the nation. In 2023, the SC Public Expression Protection Act (H.4274) was proposed in the S.C. House by Representatives W. Newton, Herbkersman, Erickson, Bradley, and Hager. If this bill were to become law, defendants would have 60 days to file an express motion to dismiss all charges based on any First Amendment rights, including communication during or concerning any governmental proceedings. If a judge agrees that a “frivolous” lawsuit, “filed solely with intent to delay the proceeding,” was designed to intimidate the defendant from expressing their First Amendment rights, attorney’s fees and litigation costs will be awarded to the defendant. If South Carolina were to pass this law, it would rank among the nation’s strongest anti-SLAPP codes and join the echelon of states who champion free speech.
H.4274 passed the House with unanimous support in March 2024. Sadly, it has sat idle in the Senate Judiciary Committee since then and was not taken up before sine die. An anti-SLAPP law like this would alleviate a great deal of legal pressure on individuals, companies, and non-profits in South Carolina and allow them to confidently exercise free speech without fear of retaliation. Such a law is long overdue in the Palmetto State, and the General Assembly should make it a priority in the 2025 legislative session.
