LOUISVILLE, Ky. (WDRB) – After being ordered to turn over public documents to a local blogger in 2017, city officials in Taylorsville did not relent.
Instead they went on the offensive and sued the blogger, Lawrence Trageser, arguing not just that the records should remain secret but that Trageser himself should pay monetary damages for publishing leaked documents about city officials.
Trageser’s attorney, Jeremy Rogers, asked a judge to dismiss the lawsuit, claiming it was part of Taylorsville officials’ pattern of trying to silence Trageser and his blog through frivolous lawsuits they hope he can’t afford to fight.
“The city is trying to intimidate Mr. Trageser into not making so many open records requests and not publishing the records he obtains on his website,” Rogers said in an interview last week.
A judge agreed, ruling that the city “brought an unfounded claim for compensatory and punitive damages” against Trageser “in an apparent attempt at intimidation designed to dissuade him from further exercising his rights,” according to court records.
Rogers said Taylorsville’s action is a classic example of a “strategic lawsuit against public participator.” Known in legal circles as “SLAPP,” these lawsuits generally have little legal merit but are filed in hopes of shutting up critics through expensive litigation, First Amendment advocates say.
Kentucky is one of only 20 states without laws that let defendants get these kinds of lawsuits thrown out quickly, saving time and money.
But last month, state Rep. Nima Kulkarni of Louisville pre-filed a bill to change that.
The legislation, which could be taken up in the legislative session that starts in January, allows defendants to ask that the suits be dismissed within two months unless evidence is shown that the case is legitimate.
Such lawsuits now drag on for months or even years regardless of the strength of the evidence. Taylorsville, a city of about 1,275 people southeast of Louisville, has appealed the ruling in the Trageser case and it is still pending even though Rogers said it is without merit.
Kulkarni’s bill would force plaintiffs like Taylorsville to put on evidence proving the lawsuit has a strong likelihood of success, before allowing it to move to the cumbersome discovery process, where both sides exchange evidence.
If a judge finds the case to be genuine, it would be allowed to move forward.
If the suit is seen as “frivolous or was filed solely for the purpose of unnecessary delay,” the judge would dismiss it and order the plaintiffs to pay court costs and all attorney fees, according to the bill.
The costs and attorney fees are important as these lawsuits can be devastating financially. Kulkarni, a Democrat who practices immigration law, said she would not be available to talk about the bill until after the holidays.
Jon Fleischaker, the state’s premier First Amendment attorney, noted that a “big advantage” for anti-SLAPP legislation is that the person sued could immediately appeal to a higher court if a judge does not dismiss the lawsuit.
“It gets you away from trial judges who may not have had the experience with these kinds of cases,” he said. “There is an automatic right to appeal.”
Jason Nemes, a Republican representative from Louisville who serves on the House Judiciary Committee, said he wants to look at how the laws have been used in other states but that “we don’t want anybody using the judicial process as a weapon to beat down a defendant from exercising their rights to vociferously criticize public officials.”
At the same time, Nemes had a few concerns about the bill as it is written, including that it specifies a judge “shall” – not “may” – force plaintiffs to pay court costs and attorney fees if the case is dismissed, taking away the judge’s authority to decide.
He said such language could have a “strong chilling effect on bringing a lawsuit” if a case was brought with good intentions but was dismissed for lack of evidence.
“We don’t want to chill good faith recourse, so it’s a balancing act,” Nemes said.
Perhaps one indication the laws are working in other states is what has taken place in Virginia in recent years.
Virigina does not have strong anti-SLAPP laws and has seen an increase in so-called “forum shopping” of defamation lawsuits.
Actor Johnny Depp and U.S. Rep. Devin Nunes are both from California but each recently filed high-profile defamation lawsuits in Virginia, even though the cases have almost no connection to the state.
The lawsuits, according to the Washington Post, are among several seeking nearly $1 billion in damages in Virginia courts this year even though most have only loose connections to the state.
California has strong SLAPP laws.
Evan Mascagni, policy director with the Public Participation Project, which is pushing for a federal anti-SLAPP law, told the Post that plaintiffs are looking for states without the law to file the cases.
“As more states are adopting anti-SLAPP laws, we are starting to see clever plaintiffs looking to weaker jurisdictions where they can file these lawsuits and not be subject to anti-SLAPP motions,” he told the paper last week.
Mascagni, a Louisville native, praised Kulkarni for "starting this important conversation in Kentucky" and told WDRB he would be coming home this year to "help advocate for a comprehensive bi-partisan solution to this problem."
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