In March 2017, Katie Hill, a then-29-year-old former director of a homelessness nonprofit, announced her run for California’s 25th Congressional District. Her year-and-a-half-long grassroots campaign unseated a carbon-emission-defending, gun-loving Trump sycophant who voted against women’s abortion rights and even voted to protect the Confederate flag. In a historic midterm, Hill was among the 99 women who triumphantly entered the United States Congress.
In another historic first, on October 27, 2019, Hill became the first member of Congress to resign after conservative media made her the victim of what we odiously refer to as revenge porn.
Hill would later learn that intimate images she’d only shared with her then-soon-to-be ex-husband were uploaded onto Google Drive. Then, via an anonymous email account, the Google link was shared directly to Hill’s political opponents, including a blogger at the extremist blog Red State. The blogger published one of the images on Red State, accompanied by an article falsely identifying a tattoo on Hill’s pubic bone as Nazi iconography. She then downloaded onto an external device a selection of images from the Google Drive, including 10 depicting Hill nude. The blogger pitched those images to the Daily Mail, where they were published (and continue to be published) under the byline of the blogger. Within minutes, Hill’s naked body became tabloid entertainment for trolls around the world. Over the next year, the Daily Mail would publish 21 more articles about Hill, with her nude images lightly pixelated or semicensored in each.
The humiliation nearly killed Hill. She suffered PTSD and attempted suicide in the days that followed the publication of the images and her subsequent resignation. While the articles accompanying the images fixated on her sex life and conjectured about whether she’d abused her power over her campaign and legislative staff, the images were completely gratuitous and provided no additional context or legitimate journalistic value whatsoever.
Hill reported the crimes in California and Washington, D.C., but to date, nobody has ever been charged. So Hill sued. And she hired me to do it. Hill wanted to show future young politicians that they can always fight back and that even when all doors seem closed, our judiciary is the great equalizer.
We didn’t dare sue for defamation despite the many lies published about Hill. The heightened pleading standard for public figures imposed by New York Times v. Sullivan requiring us to prove actual malice—that the statements were published with the knowledge they were false or with reckless disregard of whether they were false or not—was an obstacle, but not the obstacle.
The blogger and publications were protected by something far mightier and more sabotaging to plaintiffs than the actual malice privilege of Sullivan. They were protected by anti-SLAPP.
The blogger and publications were protected by something far mightier and more sabotaging to plaintiffs than the actual malice privilege of Sullivan. They were protected by anti-SLAPP. The term SLAPP is an acronym for strategic lawsuit against public participation. The idea is that anti-SLAPP statutes are supposed to eliminate frivolous lawsuits filed against publishers that, in aggregate, become so costly to defend, according to lawmakers, that it’s cheaper to just delete the article. Anti-SLAPP statutes provide an accelerated way for defendants to get cases involving the publication of protected speech dismissed, and it shifts the cost to the plaintiff who dared bring the case. Two-thirds of states have some sort of anti-SLAPP statute, which is why Justice Clarence Thomas could conceivably gut Sullivan without it impacting publishers in any meaningful way.
As the Association of Business Trial Lawyers writes, anti-SLAPP motions are considered under a two-prong analysis. First, the defendant must make a threshold showing that the challenged cause of action arises from the publication of constitutionally protected speech. After that, the burden shifts to the plaintiff, who must show probability of succeeding on the merits of the claim. For this second prong, plaintiffs must present evidence beyond the allegations contained in the complaint. Since anti-SLAPP motions occur before the phase of litigation where discovery is exchanged, providing evidence puts the plaintiff at a grave disadvantage.
In Hill’s case, we sued under California’s new nonconsensual pornography law, which empowers victims to seek civil damages against those who share their nude images without consent. Our defendants included Hill’s ex, the blogger, Salem Media (owner of Red State), and Mail Media (owner of the Daily Mail). In contrast to publication torts where we typically see anti-SLAPP challenges (e.g., defamation, false light, or public exposure of a private fact), the nonconsensual pornography cause of action has no element involving the publication of content. Instead, it centers around the nonconsensual sharing of the images.
For us, the publication of Hill’s images was relevant only to later analysis of her damages. To our bemusement, we were served with four anti-SLAPP motions within the first couple of weeks of filing our case. This was the first confrontation in the country where revenge porn and anti-SLAPP would go head-to-head. We thought we had it in the bag with prong one. Our cause of action didn’t involve publication, we figured. The lawsuit was about clandestine sharing—not publication. Were we ever wrong.
Anti-SLAPP statutes are an effective weapon for media defendants to disappear lawsuits and get them tossed out of court well before discovery, and faster than a standard motion to dismiss.
Anti-SLAPP statutes are an effective weapon for media defendants to disappear lawsuits and get them tossed out of court well before discovery, and faster than a standard motion to dismiss. With the fee-shifting features contained in anti-SLAPP statutes, most lawsuits against media go poof before passing the reception desk of plaintiff firms. In other words, anti-SLAPP motions pose too much risk for even meritorious publication torts to get filed, including cases where there are true injuries. In ordinary lawsuits, the risk to a plaintiff of losing is the ego wound of losing and the wallet injury of paying their own legal fees. However, anti-SLAPP statutes require judges to transfer a successful defendant’s legal fees and expenses to the plaintiff. This unusual punitive measure is a one-way road—a plaintiff who successfully defends against an anti-SLAPP motion is not reimbursed for attorneys’ fees or costs.
In April and May of 2020, we took a bloodbath in court. The court ruled multiple times that the sharing of the images was constitutionally protected speech because it was performed in pursuit of journalism and about a public figure. Even the right-wing blogger’s dissemination of the 10 images to the Daily Mail, only three of which were published, was considered part of newsgathering and reporting. And we were no more successful in prong two, because repeatedly the court found no likelihood of succeeding on the merits, as none of the defendants were alleged to have been the first to share the images. Moreover, the court was convinced by their affirmative defenses that they were reporting about a newsworthy topic that was in the public interest. As you see, the judge played a cringeworthy number of roles in her anti-SLAPP adjudication—judge, jury, and expert.
We could have appealed and maybe won. Or more likely, we would have lost. Not surprisingly, the appellate jurisprudence throughout the country favors defendants. Plaintiffs who lose anti-SLAPP motions and are saddled with their opponent’s legal bills are deterred from appealing anti-SLAPP decisions, since doubling down on the loss could easily increase their debt from six figures to seven. Thus, the folks most likely to appeal are deep-pocketed media defendants.
Many with a journalistic bent who are reading this may find these grousings of a frustrated plaintiff’s lawyer to be grounds for celebration and demonstrative of the anti-SLAPP system working as designed. However, I urge readers to consider that even plaintiffs and, I dare say, plaintiff’s lawyers, appreciate a world with a thriving free press and journalistic freedom. Speech and journalism, though, are not well served by the current trend toward dismissing even valid cases where individuals have been truly harmed. Anti-SLAPP not only denies those litigants their day in court and hope for equity but also cripples litigants with legal fees that would drive all but the most wealthy into bankruptcy. The anti-SLAPP system, with its extravagant reach and fee-shifting, has perverted our justice system even further.
Our biggest publishers—consolidated corporations and big tech/social media—can make money off of somebody’s nude images going viral around the globe. They get to not only make money from the advertising and the likes but can render insolvent the brave litigant who dares to sue. The current anti-SLAPP regime is a far more insidious threat to everyday folks’ access to justice than any picking away at Sullivan that Justice Thomas might tease about. Just ask Katie Hill.
Carrie Goldberg is a victims’ rights attorney and the founder of C.A. Goldberg, PLLC law firm.