Kentucky Lawmakers Consider Curbing Lawsuits That Target Critics

Aug 5, 2021

Credit Ryland Barton

Some Kentucky lawmakers are pushing for a bill to discourage lawsuits that seek to intimidate or silence critics with drawn-out court proceedings.

Free speech advocates say wealthy companies and individuals file what’s called a SLAPP—a strategic lawsuit against public participation—to retaliate against people or organizations that criticize them.

The lawsuits force critics to defend themselves during lengthy and expensive litigation before a court determines an outcome.

Rep. Nima Kulkarni, a Democrat from Louisville, is pushing the legislature to pass an anti-SLAPP law. She says the lawsuits create a chilling effect on free speech, and plaintiffs often don’t intend to win in court.

“Often these lawsuits are intended to delay matters or to discourage individuals from continuing in that speech. It could be just until the point becomes moot, it could be until public interest wanes,” Kulkarni said.

At least 30 states have passed some form of anti-SLAPP legislation some of them only apply to news outlets, others protect a broader range of people and organizations.

Lawmakers discussed SLAPP issues during a legislative hearing on Thursday. Kulkarni filed an anti-SLAPP bill ahead of the 2020 legislative session but it didn’t advance.

Under that version of the bill, defendants could ask a judge to dismiss a SLAPP lawsuit before the lengthy discovery phase of proceedings, unless the plaintiff can prove they’ll have a strong likelihood of success in the case.

Sen. Phillip Wheeler, a Republican from Pikeville, said he was worried an anti-SLAPP law could limit access to the courts.

“I can see some merit to what you’re trying to achieve, but I also think it’s a slippery slope towards a system and civil justice system in Kentucky that I just am extremely opposed to, which is that the prevailing party always is entitled to attorney’s fees,” Wheeler said.

Rep. Jason Nemes, a Republican from Louisville who supports the measure, said critics would have to prove they weren’t misusing the court system.

“If you file a lawsuit against someone for exercising their right to speak and participate in the public process and they can prove that is misuse of the court system, they have to prove it in court. Only then will this apply,” Nemes said.

If a bill is filed, it will be considered during the next legislative session, which begins in January.