Congress should improve anti-SLAPP laws so free speech isn’t stifled.
The New York Times last week wrote an article observing “the budding legal tactic by Chinese firms” of suing their critics for defamation.
“Chinese companies have sued or sent threatening legal letters to researchers in the United States, Europe and Australia close to a dozen times in recent years in an attempt to quash negative information, with half of those coming in the past two years,” writes the Times. “The unusual tactic borrows from a playbook used by corporations and celebrities to discourage damaging news coverage in the media.”
This tactic is called a SLAPP suit – a Strategic Lawsuit Against Public Participation. They’re mean to intimidate critics into silence, or drown them in litigation and legal bills, and its use has been “budding” for a while now. That Times article notes plenty of examples of well-established and -moneyed Chinese business interests going after critical researchers. It doesn’t, however, cite the suit the Alliance for American Manufacturing (AAM) faced in 2020 when we were sued for libel by Chinese manufacturing conglomerate BYD.
The timing of that suit is worth noting: Roughly a year after AAM argued that federal transit dollars shouldn’t be awarded to entities or concern or companies headquartered in non-market economies and the resulting legislation cut BYD out of federally backed procurement markets for rolling stock like rail cars and buses, which it makes, the company claimed statements made and blog posts authored by AAM employees were part of a “malicious, fraudulent, outrageous, and reckless campaign to damage BYD’s reputation and brand with false allegations and misleading rhetoric.” Here’s the one I wrote that the company said was defamatory. In it is an image Eastbound & Down character Kenny Powers saying “dollar, dollar bills y’all.”
The lawsuit dragged on for years, only ending when it was denied a review by the U.S. Supreme Court. And it didn’t mention AAM’s advocacy for legislation that got BYD barred from participation in that federal procurement market. But, in our opinion, that advocacy was clearly what this was all about.
AAM offered a solution in written testimony submitted to the House Select Committee on China, which held a hearing on this “lawfare” last September:
From AAM’s vantage, the meritless defamation claims were very clearly intended to divert AAM’s time and resources away from our organizational purpose, which involves taking part in public policy debates in support of the U.S. manufacturing sector and its workers. BYD’s meritless suit against AAM was intended to stymie its exercise of its First Amendment rights and hinder its public policy advocacy activities. Put simply, BYD’s lawsuit was intended to stifle AAM’s voice in Washington, D.C.
Throughout the ordeal, AAM was left with little recourse in its defense of BYD’s claims because U.S. Federal Courts have determined that the District of Columbia’s municipal law intended to guard against such frivolous lawsuits did not apply to cases dismissed by Federal Courts pursuant to the Federal Civil Rules of Procedure. It is foolish to believe that the PRC’s lawfare tactics are not purposefully exploiting such gaps in legal protections for harmless defendants. Congress must, therefore, act to prevent the U.S. legal system from being exploited by the PRC as a cudgel against law abiding U.S. citizens and constitutionally protected acts in the United States.
If you’d like to read more about the SLAPP suit that AAM faced, The Wire China wrote it up last summer and the article can be found here. The New York Times article can be found here.