In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.
Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.
Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.
Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.
At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.
As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.
Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.
I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.
My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.
UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.
A bill that would have gutted the state Freedom of Information Act (FOIA) was defeated in committee in the Arkansas House on March 29. A more modest bill amending the open meetings act passed.
My friend Professor Robert Steinbuch testified decisively against the comprehensive HB1726, which read like a wish list of transparency opponents, dismantling one provision after another of the state FOIA. I was there.
Bill sponsor Rep. David Ray presented the bill to the House State Agencies and Governmental Affairs Committee, though there can be little doubt that the bill was devised by lobbyists such as Arkansas's municipalities or counties. The bill attacked the strongest points of the FOIA that mark differences from state norms, such as Arkansas's short, three-day turnaround and lack of attorney-client privilege.
In fairness, there is room for negotiation on some of these points. An excellent one-time student of mine and Steinbuch's, Deputy Attorney General Ryan Owsley presented the bill alongside Ray. Having long served as opinions counsel, Owsley knows the FOIA well, and he fairly criticized the law for areas in which its well meaning text might be outpaced by practical realities. For example, record custodians say they're too often unduly stressed by the three-day deadline, especially when redactions are routinely required from today's typically voluminous electronic records rife with exempt personally identifying information.
But the bill proponents claimed too much. They whinged, for example, about record custodians compelled "to violate the law" and place themselves in legal jeopardy. In fact, to my knowledge, no Arkansas judge has ever demanded that custodians respond to requests other than reasonably, notwithstanding the three-day deadline. Like the 20-day deadline of the federal Freedom of Information Act, the three-day deadline is largely notional in practice. Its more salient admonition is that when records are immediately available, they should be provided immediately. A better bill might codify the de facto oversight process for voluminous productions.
Bill proponents moreover obfuscated. They articulated purported horror stories of FOIA abuse amounting to harassment of public officials. But their stories hardly bore out.
One oft repeated claim in the hearing was that a FOIA requester made a request of a school district that would have yielded 800,000 records and taken two years to process. But there was a lot of information missing from this claim.
For starters, no one ever said that the records were produced, only asked for. I could make a request tomorrow for all the records of a school district, and then someone could testify with outrage that a requester demanded millions of records. Neither side is well served by overbreadth. It's not unusual at all for an ordinary-citizen requester to over-ask, and then for a custodian to work with a requester to help narrow the request to what the requester really wants. The two years' labor claim was always made in the conditional tense, so it seems the referenced situation was somehow resolved without a crisis.
Second, no one ever said what medium or format the 800,000 records were in. I once FOIAd the voter rolls for several ZIP codes in Arkansas. If every one of those files was considered a "record," then I FOIAd some million records. But I received them in just a few minutes as a kind election official downloaded the data to a USB stick for me.
Third, no one ever said anything about the content of the 800,000 records. Maybe the request was justified. Journalists in the hearing testified to matters such as the discovery of juvenile abuse through public record requests. If that's what those records revealed, then I say, get to work.
Many police testified in favor of the bill. One police witness complained about requests from the ACLU investigating police conduct. I'm not sure I have a problem with those requests. Remarkably, one police witness complained because a journalist's investigation of a fatal shooting by police determined that the shooting was justified. Was the officer hoping for a different conclusion? Exoneration hardly suggests that the records were ill sought to begin with.
Insofar as the bill sought to tackle points of the FOIA that might benefit from fair-minded reform, the problem with HB1726 was procedural as well as substantive. Surely as a matter of political strategy, the bill was introduced late in the session, when legislative committees are overworked—the instant hearing went well into the night—and tend to be less scrutinizing of what they pass.
The bill was introduced on a Monday and immediately came up in committee on Wednesday. It was stunning and telling that so many citizens organized to turned out against the bill so fast. In the interim, the state FOIA advisory body, a legislatively constituted entity that exists for the very purpose of vetting FOIA legislation, obliged the timeline with an emergency meeting on Tuesday. But Rep. Ray was a no-show and complained at the hearing that he had had a conflict. He blamed the advisory group for his timeline.
Disappointingly, HB1726 came to committee with the support of Governor Sarah Huckabee Sanders. A young aid represented the Governor at the hearing, and I could not help but think that he was set up to take the heat. One witness aptly pointed out that transparency is a plank in the state Republican platform. This was not Gov. Sanders's only recent embarrassment.
A second bill, sponsored by Rep. Mary Bentley, passed the committee later in the night. HB1610 would set a one-third-of-members threshold to trigger the open meetings act. Like other jurisdictions, Arkansas has struggled with the threshold question. To the aggravation of municipality lobbyists, the state supreme court has held that the act is triggered by even a two-person meeting if transparency would be subverted.
The bill hardly got a full hearing in the committee. Because of the late hour after the HB1726 debacle, the committee limited witnesses on each side to 15 minutes in sum. But they testified in the order they signed up. So time ran out on the opposition side upon citizen witnesses who were not as effective as advocates such as Professor Steinbuch and attorney Joey McCutchen.
I dared think that HB1726 was a mere smokescreen to push through HB1610. But HB1726 was such a disaster that it's hard to believe so much thought went into a concerted strategy.
Professor Steinbuch is author of the treatise, The Arkansas Freedom of Information Act (LexisNexis 8th ed. 2022). I was a co-author of the preceding fourth, fifth, and sixth editions. The book originated with Professor John Watkins in 1988.
Below is the hearing on both bills on March 29. The hearing is remarkable for putting on exhibit the wide range of constituencies that support and oppose transparency in state and local government, and their reasons.
On March 29, I testified on a bill in the Arkansas legislature that would consolidate back-office functions of the state's two law schools, making more money available for the educational mission.
Senator Mark Johnson generously invited me to present with him his SB370 to the Arkansas Senate Education Committee. The bill furthers a theme I articulated in a 2011 white paper before I left Arkansas for New England.
In the 2011 paper, I posited that Arkansas might provide more and better opportunities to students at both Fayetteville and Little Rock law schools if the two public schools were not locked into "pseudo-competition," but, rather, shared administrative services as one law school on two campuses. I roughly estimated a savings of $800,000 to $1.2m, which could be used to enhance the program of legal education.
Rutgers University did exactly that in 2015, combining its New York-proximate Newark school into a two-campus institution with its capital-proximate Camden school, despite their locations at opposite ends of New Jersey. Penn State presently is planning to merge its law schools at capital-proximate Carlisle and research-oriented University Park.
Of the 25 states with less than median population in the United States, Arkansas is one of only three with two public law schools. The others are Kentucky and Kansas. Kentucky has five million people to Arkansas’s three million. Kansas has two public law schools only because of Washburn’s unusual history as one of the last remaining municipal universities in the nation. If one compares the states of the Eighth Circuit, only Arkansas and Missouri have two public law schools. Missouri has double Arkansas’s population and also has two private schools.
SB370 does not go as far as the merger I proposed in 2011, as effected at Rutgers and planned for Penn State, but the bill would take a step in that direction by merging back-office functions without affecting student-facing services. There's no good reason for both schools to be maintaining separate operations in advancement, for example. The advancement professional in Little Rock alone earns more than $109,000, plus benefits.
Senator Johnson asked me to address in particular for the committee any potential ramifications for ABA accreditation for the schools, were SB370 to become law. For the most part, SB370 will have no effect at all on accreditation, because the bill does not affect the program of legal education.
As written, SB370 proposes a "joint dean," which was a stumbling block. As long as Arkansas wishes to retain two separately and fully accredited law schools, each will have to have a chief administrative officer, whatever the person is called. The two deans presently earn about a quarter million dollars each per year, give or take, plus benefits. I told the committee, there will have to be two deans. But they need not earn so much in a semi-combined institution. Each of Rutgers's campuses retains a dean, but they split the administrative supplement to their faculty salaries.
Senator Johnson already was aware of the "joint dean" issue and had prepared an amendment for the committee. However, a senator objected to viewing the bill without the amendment engrossed, so Senator Johnson pulled the bill for re-engrossment. With the legislative session waning, the bill might not have time to come back to committee for a vote. But the idea will remain sound, and I am hopeful that it will have its day. The students of the state's two public law schools all deserve the best and fullest range of opportunities that Arkansas higher education has to offer.
I am grateful to Senator Johnson for his kind and erudite engagement with my 2011 paper and the invitation to join him, and to my friend and colleague Professor Robert Steinbuch for helping to coordinate my visit to Arkansas.
Last week the American Society of Comparative Law (ASCL) met at the University of Missouri Law School. I was privileged to participate among 120 scholars from 20 countries.
As part of the works-in-progress program at the front end of the conference, I presented the most recent iteration of my work on access to information law, comparing private-sector transparency and accountability measures in South Africa with selected standards in Europe.
I benefited from exchange of critique from a room full of participants, including co-panelists James Maxeiner of the University of Baltimore and Kwanghyuk (David) Yoo of the University of Iowa. Maxeiner presented a fascinating comparative study of lawmaking in Germany and the United States, showing the inventive ways that lobbying-driven American lawmakers might learn from Germany's variegated means of incubating potential legislation. Yoo talked about U.S. and European Union court decisions on antitrust challenges to patent settlements in the pharmaceutical industry: when a company settles a lawsuit to keep a patent challenger out of the market, when does dispute resolution cross into anti-competitive misconduct?
The panel was moderated by Missouri’s Mekonnen Ayano, a Harvard doctoral graduate and formerly an Ethiopian judge and World Bank legal counsel. University of Missouri Dean Lyrissa Lidsky, an accomplished media law scholar, attended and live-tweeted the panel.
[UPDATE: Vainly adding photos with me in them, courtesy of Mizzou Law.]
Prof. Maxeiner and I listen in the lecture hall.
I puzzle over dinner options.
I ramble about ATI in Africa with the generous ear of moderator Prof. Ayano.
Yesterday the Massachusetts Supreme Judicial Court (SJC) held that a statute of repose bars a claim under the Commonwealth's key consumer protection statute, chapter 93A. The case examines the oddly "contort" (contracts-torts) role of 93A and occasions a majority-dissent dispute over judicial construction of statute vs. "usurpation of ... legislative prerogative," i.e., corrective justice vs. distributive justice.
Chapter 93A is important in Massachusetts tort law because it is drawn much more broadly than the usual state consumer protection statute. In a Massachusetts tort case, chapter 93A often provides a parallel avenue for relief and can afford a plaintiff double or treble damages, as well as fee shifting. That makes it a powerful accountability tool in areas such as product liability, well beyond the usual consumer protection fare in trade practices.
The SJC, per Justice Cypher, published a sound primer on statutes of limitation and repose:
Statutes of repose and statutes of limitations are different kinds of limitations on actions. A statute of limitations specifies the time limit for commencing an action after the cause of action has accrued, but a statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon occurrence of a specified event.... A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date.... Statutes of limitations have been described as a "procedural defense" to a legal claim, whereas statutes of repose have been described as providing a "substantive right to be free from liability after a given period of time has elapsed from a defined event." Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 125 (2014). The statutes are independent of one another and they do not affect each other directly as they are triggered by entirely distinct events. [Citations omitted.]
Chapter 93A is covered by a four-year statute of limitations. A six-year statute of repose covers tort actions arising from deficiencies in improvements to real property: "after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner."
In the instant case, the plaintiff sought relief for damage resulting from a fire 15 years ago. The plaintiff attributed the fire to multiple deficiencies in electrical work completed by defendant contractors. Arguing that the electrical work was not done in compliance with the state code, the plaintiff characterized 93A as "neither wholly tortious nor wholly contractual in nature." The court, however, found the plaintiff's claim "indistinguishable from a claim of negligence," so barred by the statute.
Three justices dissented. Chief Justice Gants in dissent pointed out that the general statute of repose does not mention chapter 93A, while the general limitations provision does. And yet another statute, stating terms of both limitation and repose, purports to govern both contract and tort malpractice actions against doctors. So the legislature knew how to write what it meant. The general statute of repose, the chief observed, predated chapter 93A, so could not have anticipated it. Moreover, statutes of limitation and repose have distinct policy objectives:
In short, as is alleged in this case, the property owner may be barred by the statute of repose from bringing a claim before he or she knows, or reasonably should know, that he or she even has a claim -- even where the defendant has fraudulently concealed the claim from the plaintiff. Consequently, a statute of repose reflects a legislative decision that it is more important to protect certain defendants from old claims than it is to protect the right of plaintiffs to enforce otherwise valid and timely claims.
Thus a statute of repose should not be construed to cover 93A absent plain legislative direction. The chief concluded: "[T]his is a usurpation of a distinctly legislative prerogative."
The 91st General Assembly of the state of Arkansas is winding down; the deadline to file new bills passed two days ago. Unexceptionally among the states, this flurry of furious lawmaking always entails a range of assaults on the state freedom of information act (FOIA). In fact, this spring season after the bill deadline is especially hazardous for transparency advocates, because pending bills and so-called "shell" bills, filed but devoid of content, can be quickly amended and rushed through committee with monstrous consequences. The Arkansas Project, which favors transparency in state government, has written about the FOIA activity in this session, lately here and here.
It happens that this year also has seen the publication of the sixth edition of the treatise, The Arkansas Freedom of Information Act (U. Ark. Press), on which I am privileged to be co-author with Professor Robert Steinbuch and lead author John Watkins, professor emeritus. Steinbuch has been especially vocal in the media on FOIA, making the case for transparency and holding legislative feet to the fire of public accountability, lest legislators undermine the law. He penned in jest a cartoon, which he's given me permission to publish here:
Last year the federal FOIA turned 50, and the Swedish Press Freedom Act, oft regarded as the first FOIA in the world, turned 250. This year, alongside its contemporaries in many states, the Arkansas FOIA turns 50. Amid all the changes of our technological and populist age--no matter whoever is wiretapping whom--let's hope that Steinbuch's cartoon is only a lampoon at legislators' expense, and not a portent for government transparency and accountability at any level.
