I had a front row seat watching the court system be manipulated. Being married to Lance Armstrong’s agent (now ex-husband) meant seeing a legal strategy play out where the judicial system was used to silence those who dared to speak the truth about Armstrong’s doping. It also meant seeing the truth-tellers’ lives ruined along the way.
Armstrong lied about his years of rampant performance-enhancing drug use. His vehement denials survived in part because, each time a truth-teller challenged him, Armstrong retaliated by slapping them with a lawsuit. After years and millions in legal fees and settlements, the truth finally vindicated these voices. In 2012, The United States Doping Agency issued its “Reasoned Decision,” citing mountains of proof of Armstrong’s performance-enhancing drug use.
In an about face, Armstrong did a “tell-all” interview with Oprah Winfrey, admitting to doping. He also conceded that he was nothing more than a bully who had sued the journalists, friends, and colleagues who had accused him of doping:
Armstrong: “Yeah, I was a bully.”
Winfrey: “You’re suing people and you know they’re telling the truth? What is that?”
Armstrong: “It’s a major flaw.”
This is not just a character flaw in one superstar: it’s a flaw in our judicial system, but one that can be fixed. The powerful must be held accountable, and the bullying must end.
Meritless lawsuits, like the ones Armstrong filed, targeting truthful speech are called “Strategic Lawsuits Against Public Participation” (SLAPP). SLAPP filers don’t go to court to seek justice. Rather they file frivolous lawsuits to silence, harass, and intimidate their critics. SLAPP filers harness the judicial process as a weapon in a strategy to win a political, social, or economic battle. Defending against a meritless lawsuit can cost hundreds of thousands of dollars and clog up the court system for years, while at the same time having a chilling effect on the writer or speaker.
In recent decades, 33 states have passed laws to counter the onslaught of SLAPP suits. These laws protect the SLAPP victims and empower them to push back against frivolous lawsuits targeting free speech by having the cases quickly dismissed by the courts, and by holding SLAPP’ers responsible for court costs and fees. These strong protections are needed to preserve our rights to speak freely, participate in our democracy, and hold the powerful accountable.
This doesn’t just impact those who unmask an athlete’s doping. It affects children who expose the nursing home that is not properly caring for their parent; domestic violence victims who speak out about their assailants; customers who file Better Business Bureau complaints after being swindled by a multi-level marketing deal; consumers who warn others about dangerous products. In short, it affects anyone who does not want to be oppressed and muzzled by someone with more power and resources.
After Armstrong’s cycling team soigneur, Emma O’Reilly, spoke out about her involvement in the team’s doping program, Armstrong hauled her into court and demonized her as a prostitute with a drinking problem. As she describes it, “Lance tried to make my life a living hell.” She was sued for more than she was worth. The case drug on for three years, ending in settlement. “The traumatizing part,” according to O’Reilly, “was dealing with telling the truth.”
AS A FIRST Amendment attorney, I was aghast at how easily the judicial system could be manipulated and the devasting wake left by Armstrong’s lawsuits. The disconnect was profound, as I saw truth left on the cutting room floor.
O’Reilly, like many SLAPP victims, had no idea that the retaliation against her would be so strong. Only the most tenacious and well-resourced critics can withstand a powerful onslaught of lawyers and filings. The profound need for legislative reform was apparent so truth and accountability can prevail.
Accordingly, the Uniform Law Commission recently enacted a Model Anti-SLAPP Act for passage in the SLAPP deserts throughout the country — the states with no or marginal protections.
Still, bullies can game the system and do. Those who want to inflict pain against people that expose wrongdoing can simply file their case in federal court and, depending on the jurisdiction, avoid the reach of a state anti-SLAPP law.
