Law & Principles

In free-speech win, House sustains governor’s veto

May 25, 2023

Ray Carter

Gov. Kevin Stitt’s veto of legislation that would have reduced Oklahomans’ protections against frivolous lawsuits based on free-speech activity has been sustained by members of the Oklahoma House of Representatives.

A “strategic lawsuit against public participation,” commonly referred to as a SLAPP lawsuit, is typically filed to drain the financial resources of individuals and groups engaged in free-speech activity. Those filing the lawsuits seldom have a realistic expectation of a court victory but can use the lengthy court proceedings to cause financial harm to public-policy opponents and deter them from engaging in public debate.

As a result, Oklahoma and a majority of U.S. states have “anti-SLAPP” laws that impose significant penalties on individuals or groups that file harassment lawsuits in an effort to deter free-speech activity.

Under the Oklahoma Citizens Protection Act, the state’s anti-SLAPP law, a defendant sued for defamation who wins a motion to dismiss by asserting a First Amendment privilege recovers costs and attorney fees from the entity that filed the harassment lawsuit—and the law requires that the party that filed the harassment lawsuit must pay a sanction “sufficient to deter” similar legal harassment in the future.

House Bill 1236 removed the requirement for courts to impose those penalties.

In his veto message for HB 1236, Stitt noted that the Oklahoma Citizens Participation Act “is designed to deter lawsuits intended to chill Oklahomans’ right of free speech, right to petition, and right of association.”

“Currently, defendants who secure dismissal of lawsuits under the Act are entitled to mandatory costs, attorney fees, other expenses, and potential sanctions,” Stitt wrote. “The Bill would make discretionary what is now mandatory. Such a change would undermine the Act’s purpose, ensuring a greater frequency of frivolous lawsuits against Oklahomans exercising free speech.”

Stitt’s veto of HB 1236 drew support from a wide range of groups across the political spectrum, including ACLU Oklahoma and the Oklahoma Council of Public Affairs.

National organizations also supported Stitt’s veto, including the National Coalition Against Censorship, the Foundation for Individual Rights and Expression, Center for Biological Diversity, National Taxpayers Union, Reporters Committee for Freedom of the Press, Society for Professional Journalists, James Madison Center for Free Speech, and Better Business Bureau.

The National Right to Life Committee has separately supported strong anti-SLAPP laws.

The Oklahoma Press Association also supported Stitt’s veto and urged lawmakers to sustain it.

Mark Thomas, executive vice president of the Oklahoma Press Association, wrote that the Oklahoma Citizens Participation Act “is a protection for all persons, including news media, if a meritless libel or slander lawsuit is filed against you.”

“HB 1236 changes one word in statute. It deletes the word ‘shall’ and inserts the word ‘may’ when the judge decides to award attorney’s fees and expenses,” Thomas wrote. “That small change will have a big impact. The powerful are emboldened to file ‘strategic lawsuits against public participation’ and the person/publication must think twice before it decides to fight in court. If you SHALL get your attorney fees back, you fight. If you MAY get your fees back, you must think hard about spending thousands of dollars to defend your right to free speech.”

Thomas pointed to a recent court case—in which officials with Epic Charter Schools sued former state Sen. Ron Sharp of Shawnee for libel and slander—as an example of the benefit provided by the Oklahoma Citizens Participation Act. When Sharp won, he recovered $36,000 in legal fee reimbursement and a $500,000 sanction was imposed on Epic.

Another notable free-speech case involving the Oklahoma Citizens Protection Act was a lawsuit, now entering its fourth year, filed by Paycom Payroll, LLC for defamation. The lawsuit relates to an article published by the Oklahoma Council of Public Affairs that briefly mentioned an open letter written by Paycom CEO Chad Richison in response to COVID-19. The suit was dismissed under the anti-SLAPP law, but the decision was ultimately reversed by the Oklahoma Supreme Court because the trial judge did not dismiss the suit within the 30-day timeframe outlined by the statute.

In his public letter released in March 2020, Richison called for temporary closure of a range of businesses, “which includes, but is not limited to, hair salons, nail salons, spas and massage parlors,” as part of the state’s COVID response. He also endorsed requiring grocery stores to provide “drive-thru pick up or delivery for all customers,” and mandating that undefined “critical” businesses be required to coordinate “with state government.” Richison also called on state government to mandate how “food preparation and other critical portions of the supply chain” are handled under undefined “newly established uniform standards to prevent transmission of the virus.” Richison also called for postponement of so-called, unspecified “elective surgeries” and endorsed having the government collect “all essential medical supplies” normally used for those surgeries or by “med spas and other medical organizations.” And Richison called for a ban on “all non-essential” travel from Oklahoma airports.

In a March 3, 2020, letter to the University of Oklahoma’s board of regents, Richison wrote that the university’s “previous diversity training efforts failed because they assured free speech protection” and announced Paycom was yanking advertising from the school.

Those voting to sustain Stitt’s veto came from both sides of the political aisle.

“Normally, I would be in favor of an override of the governor’s veto, but in this particular case I take pause because I think about those who are of modest means or less who may or may not have the ability to defend themselves in court,” said state Rep. Andy Fugate, D-Oklahoma City.

He also referenced the Epic lawsuit against Sharp.

“I would encourage all the members to think very, very hard about the people in your districts who would be in a position where they had no resources and the potential to be out tens of thousands of dollars defending themselves against a frivolous lawsuit,” Fugate said.

The Oklahoma House of Representatives voted 36-61 on the motion to override Stitt’s veto. Two-thirds of lawmakers in each chamber must support an override motion for it to succeed.

The Institute for Free Speech ranks Oklahoma’s current anti-SLAPP law among the best in the nation, noting the law “protects the exercise of the right of free speech, right to petition, and right to association.”

The Reporters Committee for Freedom of the Press has compiled a list of many cases across the nation where anti-SLAPP laws have protected citizens’ free-speech rights. That list includes a 2016 case where a politician sued Oregon Right to Life and the Oregon Family Council after those groups sent out mailers that highlighted the lawmaker’s past sexual relationship with an aide, and a 2019 case where the lieutenant governor of Virginia sued CBS for defamation after the station interviewed two women who accused the lieutenant governor of sexual harassment.