The balance between free speech and access to courts in defamation tort actions is fraught with public policy concerns. On one hand, plaintiffs should have unencumbered access to the justice system to remedy real harms brought upon them by defamatory statements. However, defamation suits should not be wielded to suppress the constitutionally protected free speech rights of news organizations and of concerned citizens that are vital for well-functioning democracies. This Article argues for a new type of remedy, namely enhanced Rule 11 attorney sanctions, such as suspension or debarment, that should be available to defendants of defamation suits brought by repeat players that use “cookie-cutter” complaints. This Article specifically proposes a novel four-part test implicating use of attorney sanctions as a remedy for filing niche types of frivolous lawsuits. Per this test, a court should weigh the following factors to determine if such sanctions are warranted: (1) if the plaintiff habitually files and loses defamation-type suits to prevent protected free speech; (2) the nature of the defendant, especially if the defendant is a news organization; (3) the proportionality of the damages requested, and; (4) if a countersuit is at issue.
In this Article, we examine a case study in the form of a decades’ long frivolous litigation pattern exhibited by Murray Energy and Robert Murray as its CEO. Murray Energy has been characterized as the single largest privately-owned coal corporation in the United States, and thus constitutes a prominent actor well-suited for assessing the potential strengths and weaknesses of developing this new remedy. We ultimately conclude that enhanced Rule 11 attorney sanctions, as weighed and levied vis-à-vis the proffered test, could constitute a potentially potent deterrent to frivolous lawsuits designed to inhibit the free speech of the press and of concerned citizens—which indeed occupy a crucial watchdog role in healthy democracies.
Shine Sean Tu & Nicholas F. Stump, Free Speech in the Balance: Judicial Sanctions and Frivolous Slapp Suits, 54 Loy. L.A. L. Rev. 623 (2021).