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The Need For A Federal Anti-SLAPP Law Is Clear And Overwhelming

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SLAPP: Strategic Lawsuit Against Public Participation

Lawyer Daniel Horowitz has a wonderful write-up for NYU's Journal of Legislation & Public Policy on why we need a federal anti-SLAPP law. It's a quick, but thoughtful overview (and, full disclosure, I gave him a couple of small points while he was researching the article), that details not just the need for more SLAPP laws in general, but specifically a federal anti-SLAPP law. As he makes clear in the piece, there are just way too many ways to get around state anti-SLAPP laws (if a state even has one, which many don't):

Second, even in states that have enacted anti-SLAPP statutes, [t]he scope of [] anti-SLAPP statutes varies greatly.[ For instance, some states provide robust protection against SLAPP suitsapplying to virtually all constitutionally protected speech and offering a cornucopia of benefits such as a specialized procedure for obtaining early dismissal, an automatic stay of discovery, and mandatory attorney's fee-shifting. By contrast, other states' anti-SLAPP statutes provide meager benefits and apply only narrowly, for instance, to speech made to government entities.Third, even when a plaintiff files a SLAPP suit against someone who resides in a state with a strong anti-SLAPP statute, the substantive law of the defendant's residence will not necessarily apply to the case. Instead, the law that governs the plaintiff's claims will turn on the choice of law rules of the forum in which the suit was filedan inquiry that can, and often does, result in the substantive law of the plaintiff's residence or the place of injury applying instead.
It then notes the troubling trend, that we've discussed in the past, that many federal courts have now said that state anti-SLAPP laws cannot be used in federal court -- meaning that as long as they assert federal causes of action, they can get around many state anti-SLAPP laws. That wouldn't work with a federal anti-SLAPP law. That last one is important, because there are a variety of federal laws that are used for SLAPPs:
Plaintiffs also have had little difficulty filing SLAPP suits using federal causes of actionfor instance, under the Lanham Act, 42 U.S.C. section 1985, the Copyright Act, and civil RICO statuteswhich provide a straightforward means for plaintiffs to sue their critics, however baselessly, regarding protected speech.
From there, the article details how a federal anti-SLAPP law would solve many of these problems -- making sure it applied in federal court and to federal causes of action -- and that it would end cases more quickly and shift the fees to the frivolous, censorial plaintiffs. A key point made:
Where SLAPP suits are concerned, the process itself is the punishment, and many speakers cannot affordor are understandably unwilling to bearthe heavy expense associated with that process at all.
As I said, the article is a quick read, even though it cites a ton of examples to make its points (28 footnotes for a 15 paragraph piece). And that's because the need for a federal anti-SLAPP law is so overwhelming and so obvious that it doesn't need more than 15 straightforward paragraphs. And yet, the movement to get one through Congress never seems to go anywhere, and it's been a major disappointment. Congress could stand up for free speech and against frivolous lawsuits, but it doesn't seem to want to get it done.

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posted at: 12:00am on 20-Jun-2020
path: /Policy | permalink | edit (requires password)

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FCC Skeptical About Space X Satellite Broadband Claims

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Ajit Pai's FCC majority is almost never skeptical about the claims made by giant broadband providers. Yet the FCC is expressing doubt that Elon Musk's looming, well-hyped satellite broadband service Starlink will deliver on its promises.One of the downsides of traditional satellite service isn't just high prices, slow speeds, and usage caps -- it's latency. Traditional broadband delivers somewhere in the range of 20-30ms, whereas the physics of traditional satellite broadband means service usually delivers a 200ms response time; lag that's usually very noticeable. Space X's Starlink satellite service operates using far more satellites in far lower orbits, meaning latency should be dramatically improved. But Ajit Pai's FCC has been expressing doubts that the service will be able to deliver the low latency it's promising the public.Despite the fact that Starlink could be very helpful in rural markets (its primary target), the FCC originally blocked the company from getting any rural broadband subsidies whatsoever. But last week in an order, the FCC reversed course (pdf), stating that Starlink could receive these funds. But the FCC was quick to express skepticism that Starlink can deliver broad commercial service with latency under 100ms, as it has been claiming:

"Service providers that intend to use low-Earth orbit satellites claim that the latency of their technology is "dictated by the laws of physics" due to the altitude of the satellite's orbit. We remain skeptical that the altitude of a satellite's orbit is the sole determinant of a satellite applicant's ability to meet the Commission's low-latency performance requirements. As commenters have explained, the latency experienced by customers of a specific technology is not merely a matter of the physics of one link in the transmission. Propagation delay in a satellite network does not alone account for latency in other parts of the network such as processing, routing, and transporting traffic to its destination. Short-form applicants seeking to bid as a low-latency provider using low-Earth orbit satellite networks will face a substantial challenge demonstrating to Commission staff that their networks can deliver real-world performance to consumers below the Commission's 100ms low-latency threshold."
One the one hand, I think Pai's skepticism is likely warranted. The satellite broadband sector, including low-Earth orbit satellite, has seen no limit of hype and failure over the last decade. Maybe Musk is the one who finally gets this play right, and maybe he isn't. But the broadband industry has been filled with so much empty hype over the years you really shouldn't buy into the hype of satellite broadband as a serious, major competitor until you see a broad, commercial launch. And even then, much like 5G, we need to see what speeds, pricing, and usage caps look like before declaring it some kind of competitive panacea.On the other hand, this FCC's history is chock full of examples where it expresses absolutely no skepticism whatsoever at the absurd claims made by companies like AT&T, Verizon, Comcast, and Charter (Spectrum), which all have a vested interest in broadband competitors never seeing the light of day. This is also an FCC boss who has never once expressed the slightest concern about the billions in taxpayer dollars we've thrown at Frontier, AT&T, and Verizon for fiber networks that were never delivered. Seriously, check out the fraudulent nonsense by ISPs like Frontier is West Virginia, then realize the FCC has never made a peep.Which is to say I think the FCC is making these claims in good faith, but the agency engaged in enough bad faith shenanigans the last three years, it's hard to say for sure. When you pander ideologically to industry like this FCC has done (repealing net neutrality, fighting privacy rules, fighting states' rights to enforce consumer protection), you start to lose the benefit of the doubt. Having watched this industry for 20 years, I certainly wouldn't be shocked to see regulatory barriers suddenly spring up in Starlink's path that have been lobbied for by the likes of AT&T, Verizon, and Comcast.Either way, the potential exists for Starlink (and other companies, like Amazon), to finally disrupt one of the least liked industries in America. Assuming the technology works well. And assuming regulators don't foul it up. And assuming the company doesn't get bored with the high costs and hard work required to do battle with legacy broadband providers... you know, like Google did.

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posted at: 12:00am on 20-Jun-2020
path: /Policy | permalink | edit (requires password)

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