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Thursday, May 23, 2024

NHC leaders have repeatedly called for anti-SLAPP law — but courts, House Speaker don’t want one

Rep. Ted Davis Jr. said Speaker Tim Moore’s office made the decision not to hear the Uniform Public Expression Protection Act after receiving pushback. (Courtesy NC Speaker Tim Moore Facebook)

NEW HANOVER COUNTY — In the past 15 years, two New Hanover County representatives introduced legislation aiming to strengthen North Carolina’s free speech protections — but for unclear reasons, the bills never made it out of initial committees.

READ MORE: Clash with a Titan: one year after grassroot activists stopped a concrete plant, they revisit the past while looking to the future

North Carolina is one of 17 states without an anti-SLAPP law, an acronym for strategic litigation against public participation. Anti-SLAPP laws vary, but are generally designed to prevent litigation used to intimidate critics with the threat of onerous legal expenses. 

In other words: SLAPP litigation generally takes the form of defamation suits in which plaintiffs are intending to silence critics with expensive, drawn-out lawsuits rather than win on the case’s merits. 

While a growing number of states have enacted anti-SLAPP laws, organizations such as the Electronic Frontier Foundation and the Columbia Journalism Review argue in favor of a federal law to deter the increasing use of SLAPP suits against activists and news outlets; Rep. Jamie Raskin (D-MD) introduced such a bill in 2022, claiming the fossil fuel industry had for decades “abused our legal system” to intimidate environmentalists with SLAPP litigation.

Rep. Deb Butler, who has represented New Hanover County in district 18 since 2017 described Titan America LLC’s 2011 suit against two Wilmington residents as a “perfect  example” of a SLAPP lawsuit. 

Citizens Kayne Darrell and David Hill — the latter of whom is competing against Sen. Michael Lee for the district 7 seat this November — are medical professionals who were part of the Stop Titan Action Network advocacy group. Titan America sued the activists after they raised concerns about the negative environmental and public health impact of the company’s proposed Castle Hayne cement plant.

“They repelled that organization,” Butler told Port City Daily. “They fought it and prevented them from launching their manufacturing facility, but they got sued in the meantime.”

Attorney Gary Shipman of Shipman & Wright represented Darrell and Hill before the suit was settled in 2012. Titan abandoned the project four years later.

Butler’s predecessor Susi Hamilton — who represented district 18 from 2011 to 2017 — introduced the anti-SLAPP Citizen Participation Act in response to Titan’s suit in April 2011.

“It is in the public interest to encourage continued participation in matters of public significance,” the bill stated. “This participation should not be chilled through abuse of the judicial process.”

House Bill 746 would have created a special motion to dismiss lawsuits seeking to discourage citizens from exercising their legitimate First Amendment rights, but died in the judiciary subcommittee a month after its introduction. 

A decade later, in 2023, a second New Hanover representative — Ted Davis Jr. of district 20 — introduced another anti-SLAPP bill, the Uniform Public Expressive Protective Act. 

The initial UPEPA draft was provided by the Uniform Law Commission, a nonprofit association composed of attorneys appointed by U.S. state governments. It describes its purpose as researching and providing non-partisan draft legislation to provide “clarity and stability” in “areas of state law where uniformity is desirable and practical.”

Davis Jr. is the single House appointment to the General Statutes Commission, a non-standing committee composed of state law professors. Alongside representatives of the Duke First Amendment Clinic, GSC unanimously recommended he introduce the UPEPA in February 2023. 

The Judiciary 1 Committee discussed the bill and gave it a “favorable report” before referring it to the Rules Committee in March 2023, where it remains.

“The decision was made by the Speaker’s office to displace the bill and not hear it due to concerns and push-back that had been received,” Davis Jr. wrote in an email to Port City Daily in February. 

Davis Jr. said he did not “personally know the details of the concerns or push-back” and preferred not to discuss the bill in more detail.

PCD reviewed minutes of General Statutes Commission and Judiciary Committee meetings in which the bill was considered. The Administrative Office of the Courts was the only organization expressing opposition throughout the process; AOC deputy director Joseph Kyzer and legislative affairs director Amy Auth worried the bill would add excessive complexity to legal proceedings.

Amanda Martin — general counsel of the NC Press Association and supervising attorney of Duke First Amendment Clinic — challenged this view, noting similar legislation has been passed in the majority of U.S. states. Washington, Kentucky, and Hawaii passed different versions of the UPEPA in recent years.

“When you look at the nation and where these laws have been passed, it’s all over the map,” Martin told PCD. “It’s red states, it’s blue states, it’s states with big business. There’s no particular ideology that would suggest we want this or don’t want this based on anything other than good government.”

Martin noted judges can already dismiss litigation through means such as the 12(b) rule, the failure to state a claim upon which relief can be granted. She argued an anti-SLAPP motion would simply function as an efficient means of dismissing frivolous cases early and save “tens of thousands of dollars” in legal expenses rather than complicate existing laws. 

“When you look around at states that have these laws, in no way does it cripple the court system or cause confusion,” she said. “If anything, it would allow courts to dispose of cases at an earlier stage which is to everyone’s benefit.”

She added the motion would not apply to “close calls” of legitimate defamation, but only to cases that lack merit “in a fundamental way.”

Supreme Court justice Anita Earls similarly cast doubt on AOC’s argument, noting judges routinely interpret highly complex matters, such as medical malpractice law, and amending the North Carolina rules of civil procedure would not be excessively difficult. 

“Rule nine already deals with specifics regarding libel and slander cases, so adding the anti-slapp provisions in the law generally would not be much of a stretch,” she told Port City Daily.

A broad coalition of 28 organizations submitted a letter in support of the bill, including the American Civil Liberties Union, the Motion Picture Association, the Competitive Enterprise Institute, the International Association of Better Business Bureaus, and the Reporters Committee for Freedom of the Press.

PCD reached out to Kyzer to ask about AOC’s opposition to the bill, who referred questions to communications director Graham Wilson; he pointed to AOC’s statements on the legislation submitted to the General Statutes Commission and House Judiciary 1 committee.

In March 2022, Auth wrote a list of concerns about the bill from AOC’s office of general counsel. AOC argued North Carolina’s Rules of Civil Procedure have already provided robust safeguards against frivolous claims to streamline judicial proceedings for over 50 years. 

Auth argued UPEPA would have a “significant and adverse operational impact on the courts system” by providing exemptions to rules developed through decades of appellate court interpretations; it states court officials and litigants would be forced to “identify and apply a different set of rules to different cases.”

The UPEPA’s requirement for court officials to hear anti-SLAPP motions within 60 days would burden court workers, AOC argued, who would also need “significant training” on the new legal standards. 

Auth argued the bill is not well-tested and would deprive judges of well-developed case law for expedited dismissals, which “may lead to confusing standards.”

She further argued anti-SLAPP dismissals would prevent discovery, in which parties can request documentation and information related to the case. The legislative affairs director argued discovery is “typically essential” to gather evidence and establish material facts in a case.

Auth proposed strengthening existing statutes rather than “adopting a new scheme of civil procedure for a particular category of cases” as a more effective manner to address SLAPP suits.

Campbell law professor and former Duke First Amendment Clinic supervising attorney Nicole Ligon disagreed with AOC. She said she regularly worked on SLAPP cases that eventually settled in favor of the defendant, but were time-consuming and expensive. She added she was “confused” by AOC’s argument since states with anti-SLAPP laws generally have decreased caseloads. 

Ligon added the commission revised the bill to address the court’s concerns but AOC still didn’t want the bill; from March 2021 to January 2023, the general statutes commission created nine different drafts of the UPEPA.

Ligon and Sarah Ludington — Duke First Amendment Clinic director and member of the general statutes commission — wrote a letter in response to Auth. The law professors argued the bill is meant to remedy an issue North Carolina law currently fails to address and cited a number of costly state cases that could have been prevented by an anti-SLAPP law.

The professors further stated the 60-day time limit could be altered, but emphasized the purpose of the bill is to efficiently dispose of meritless suits used to silence or punish individuals for using their first amendment rights. They added discovery should not be necessary to determine if a SLAPP suit has merit.

“A large part of the harm we’re trying to address is to prevent the person who got ‘SLAPP’d’ from racking up legal fees and getting stuck in ongoing discovery for a claim that is baseless,” the professors wrote.

To justify a defamation suit, a plaintiff must prove the defendant made a false statement that caused damages. The plaintiff must also prove the defendant was at a minimum negligent in making the false statement. 

“If a court determines that the claim has some merit, and is not merely frivolous based on the facts, then a court can simply deny the anti-SLAPP motion and the parties may proceed with discovery,” Ligon and Ludington responded to Auth.

Before joining AOC, Auth served as senate leader Paul Berger’s chief of staff and deputy chief of communications. Kyzer served as communications director for Speaker Moore’s office from 2016 to 2021 before becoming AOC’s legislative liaison for chief Supreme Court Justice Paul Newby from March 2021 until April 2023 — the period in which he discussed Davis Jr’s anti-SLAPP bill. He became deputy director of AOC in April 2023. 

PCD filed a public record requests with AOC to ask for records of communications with the Speaker’s Office regarding the bill, including with Chief Justice Newby, to which the organization responded:

“The NCAOC is working through a large backlog of requests, and are working to hire additional personnel to assist. While we are working as promptly as possible to fulfill requests, it will likely be several months before we are able to process your request.”

PCD filed a similar public records request with Rep. Ted Davis Jr. — who responded “there are no communications with either the Speaker’s Office or AOC.” Speaker Tim Moore’s office did not respond to questions and a public records request.

North Carolina legislators exempted themselves from public records enforcement in a general statute amendment in October; a diverse coalition including the conservative John Locke Foundation and the North Carolina Press Association sent a letter to the General Assembly urging revocation of the change, noting it allows lawmakers to conceal and destroy public documents.

Earlier this month, the Society of Professional Journalists gave the North Carolina General Assembly its 2024 annual “black hole award” for the change, which targets institutions which show the greatest “outright contempt of the public’s right to know.”

“Legislatures in effect are exempting themselves from accountability to citizens who want to know how their laws are made and who is influencing their lawmakers,” SPJ Freedom of Information Committee member Howard Goldberg said in a press release.

Butler called the public records exemption “disgraceful” and noted she voted against the bill: “We just passed a law that cloaks in secrecy what the general assembly does in terms of their public communications.”

The NHC representative described the Rules Committee — where the UPEPA was referred — as a “graveyard” for bills the Speaker doesn’t want heard.

“He determines whether or not something gets a hearing,” she said. “And apparently, he likes that people can bully advocates with the threat of litigation.”

Davis Jr. noted the earliest the bill could be filed again is the 2025 long session.

Tips or comments? Email journalist Peter Castagno at

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