It’s not easy these days to point to the United States as a shining example on legislation. Just as it drips in Brussels when it rains in Paris, the United States too often appears to be the foreshadowing.

Every day, the United States is a warning of what threatens to come upon us, but on an occasional occasion it deserves mention of something we would have done better to have dealt with long ago.

For this single occasion - une fois n'est pas coutume - and with timid caution, I dare to cite the United States as an example: its arsenal of anti-SLAPP legislation. Indeed, as Bruce Springsteen sings: it’s born in the USA !

SLAPP procedures as a warning sign for democracy and the functioning of the rule of law.

When democracy means much more than elections, that is only true thanks to the empowerment of its alert and critical citizens.

Of course, ‘thoughts are free’, but so are thoughts in a dictatorship. Speaking up, is another matter there. Free speech is not a one-way street.

Fundamental rights of free speech and freedom of the press are the guarantee of a vibrant democracy. In turn, those rights are secured by the rule of law, with an independent judiciary.

However, access to justice is not equal for everyone. The average citizen who thinks he is right about a claim, often has to overcome many financial and technical barriers before being vindicated.

Musk's sinister and global ascent not only warns us of a brutal oligarchy - subsequently a kleptocracy - infiltrating and undermining government.

Even the judiciary, as the third pillar of the rule of law, is finding it increasingly difficult to function as a safeguard for the equality of every citizen before the law. The idea of “equality” itself, and of “equality of arms” in the courts, is under attack. As if rights were sufficient as theory, without their actual achievement mattering.

This is particularly evident in SLAPP - proceedings, in which financially powerful people employ legal techniques - from summons to subpoena - for the sole purpose of stifling public debate.

SLAPP - proceedings are characterized by a gargantuan imbalance: on the one hand their lack of authentic legal value, on the other hand the intimidating excess of gigantic claims. In Europe, claims filed for harmful actions officially relate only to compensatory damages and not to the American concept of punitive damages. The latter imply an additional punishment, far more than any criminal law, with limited fines could: the sky is the limit there.

Yet also in Europe we increasingly see procedures in which gigantic sums are claimed as ‘damages’, but which in practice amount to intimidation and civil punishment of critical citizens and action groups.

The United States as a forerunner in anti-SLAPP - legislation

In the United States, no fewer than 33 U.S. states and the District of Columbia have been enacting anti-SLAPP legislation for some time, for their own jurisdictions, and with exceptions, in each case it was done with the support of the two major political parties.

Congress - in spite of several attempts - has never succeeded in passing a federal anti-SLAPP law, notwithstanding that legislation there is explicitly supported by the First Amendment that protects, among other things, freedom of speech, freedom of the press, freedom for peaceful assembly and the right to petition.

In early December 2024, a federal anti-SLAPP bill, the Free Speech Protection Act, was introduced for the first time by House members of both the Democratic and a Republican parties to “prevent Goliath from triumphing over David in the court, by litigation abuse”.

That initiative by Congressman (formerly professor of state law) Jamie Raskin (D, Maryland), Congressman Kevin Kiley (R, California ), and Senator Ron Wyden (D, Oregon) was applauded by a wide range of more than 20 organizations as ACLU, PEN America, The Knight First Amendment Institute.. (see the list below the press release of 5 12 2024 and also the text of the bill : https://raskin.house.gov/2024/12/raskin-wyden-kiley-introduce-bipartisan-legislation-promoting-free-speech-cracking-down-on-frivolous-strategic-lawsuits-against-public-participation ).

So much for the good news.

And the United States as well as warning: with MAGA, the anti - anti- SLAPP movement

At the same time, there now comes - in the illiberal logic of MAGA - we now witness a counter-movement. Free speech is not their cup of tea, because only their own megaphone counts: the one-way traffic in the enslaving echo chamber of so-called social media.

Conservatives have a clear agenda to short-circuit existing anti-SLAPP - legislation, and will certainly block new anti-SLAPP - legislation as well.

For example, Republican state senator Jason Brodeur filed his bill No. SB 1316 in Florida “An act concerning dissemination of information” in early March 2023 ( https://www.flsenate.gov/Session/Bill/2023/1316 ).

What you read next is real, though it seems inconceivable, or ludicrous fake news.

Indeed, according to this bill, anyone paid to write a blog, about the governor, lieutenant governor, a cabinet official or a member of the legislature must register with a special state office within five days of its publication. There they must also report who made the payment, and where the blog can be found.

If another blog post is added to a blog, the blogger would be required to file a monthly report with the appropriate state office on the 10th of each month.

Delayed reporting would result in fines of $25 per day with a maximum amount of $2500: not per author, but per post !

The registration requirement is already purely Orwellian. The penalization on top of it is ruinous. Thus, an authoritarian government would assist powerful plaintiffs to file complaints against ordinary citizens and bloggers.

Under Stalinism a better subjugation of citizen, citizen journalism and press would be hard to invent.

Just before that, on 27 02 2023, the same state senator filed his bill SB 1220: “An act relating to defamation and related actions” ( https://www.flsenate.gov/Session/Bill/2023/1220 )

Journalist Fabio Bertone of The New Yorker warned that even this somewhat dull, muted title obscures the fact that this amounted to a radical change, which would make it much more difficult for journalists to report news of public interest, and to defend themselves against proceedings because of public figures (“Florida takes aim at the First Amendment,” The New Yorker 6 3 2023: https://www.newyorker.com/news/daily-comment/florida-takes-aim-at-the-first-amendment ).

These bills - notwithstanding Florida's Republican majority - died quickly.

Even former US House Speaker Newt Gingrich (R) tweeted: “The idea that bloggers criticizing a politician should register with the government is insane. it is an embarrassment that it is a Republican state legislator in Florida who introduced a bill to that effect. He should withdraw it immediately.” 

However, at  the time the bill was introduced, the office of Gov. Ron DeSantis (R) announced it would review it (The Free Speech Project, Georgetown University, posted Oct. 2, 2023  https://freespeechproject.georgetown.edu/tracker-entries/florida-bill-dies-that-would-have-required-bloggers-who-write-about-state-officials-to-register-with-authorities/ ).

Their spirit clearly lives on. These initiatives have long been part of the outspoken agenda of, among others, Florida's arch-conservative governor, DeSantis, who wants to make it easier for public figures to bring defamation lawsuits.

DeSantis - like all MAGA - politicians is riding a double and ambiguous track.

On the one hand, he has been advocating against moderation of content on social media since at least 2021 - as Musk effectively did after taking over Twitter, resulting in an explosion of hate messages. So much for extreme cowboy - freedom.

On the other hand, DeSantis wants to reverse the U.S. jurisprudence that so far protects Free Speech & Free Press with the ‘Actual Malice Standard’ since the landmark Supreme Court Case of 1964 New York Times v. Sullivan (Matt Dixon in Politico, on 23 02 2023 https://www.politico.com/news/2023/02/23/florida-gop-desantis-proposal-sue-media-00084023 )

Within the framework of that jurisprudential ‘Actual Malice Standard’, public officials and public figures must meet a more stringent burden of proof in order to be vindicated in a defamation claim. Indeed, in their case, it must be proven not only that the publication was factually unjustified, but also that the journalist in question actually knew the falsehood, or acted recklessly.

That American landmark case has its origins in a (paid) publication in the NYT by supporters of Martin Luther King about the brutal police crackdown on anti-apartheid protests in Alabama anno 1960. Because of some factual inaccuracies therein, the local jury awarded police commissioner L.B. Sullivan his full claim of $500,000 in damages. The infamous ‘Half-Million Dollar Verdict’ was born, and confirmed by the Alabama Supreme Court Court.

That ruling was reversed by a unanimous (9-0) US Supreme Court on March 9, 1964 on the premise that the democratic right to open debate will inevitably lead to sometimes vehement and unpleasantly sharp attacks on government and public officials. A margin must also be possible for factual inaccuracies, to give freedom of speech - as a core value of the First Amendment and U.S. constitutional guarantees - sufficient “breathing room” - Justice Willam J. Brennan Jr. wrote at the time, joined by Chief Justice Earl Warren, and Justices Tom C. Clark, John M. Harlan II, Potter Stewart and Byron White, while Justices Hugo Black, Arthur Goldberg and William O. Douglas concurred.

The ruling quoted Judge Learned Hand: “The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.”

Many considerations seem written exactly for our time: “Those who won our independence believed that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government”.

Nobody is perfect, and certainly not the press, said the Court: “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.”

But freedom must prevail: “the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space that they need to survive…”

The Court referred to ‘Father of the Constitution’ James Madison: "the censorial power is in the people over the Government, and not in the Government over the people" and concluded: “It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves. We conclude that such a privilege is required by the First and Fourteenth Amendments”

(Full text via US courts.gov & Cornell Law School: https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/new-york-times-v-sullivan )

Meanwhile, following later jurisprudence, this standard also applies to all public figures.

The standard set by ‘NYT v. Sullivan’ is not a anti-SLAPP - rule as we see this now, but it obviously limits the financial risk for damages claims that would also be used to suppress political criticism.

We read in this ruling the basic concern of the Supreme Court Court about democracy, free speech, and free press - now also protected by anti-SLAPP - laws.

And now, back to today again, to the age of Trump and Musk…

Less than a year ago, on March 25, 2024, Musk lost in California in his lawsuit against The Center for Countering Digital Hate (CCDH), which investigated and published about hate speech being facilitated by the platform X.

CCDH calculated that Musk's restoration of problematic Twitter accounts from neo Nazis and vaccine - deniers, would generate up to $19 million annually (Joseph Menn in The Washington Post of 28 02 2024 'Musk's X is fighting to preserve a federal lawsuit in California’:  https://www.washingtonpost.com/technology/2024/02/28/ccdh-x-lawsuit-slapp-california/ )

Musk is now challenging this ruling in appeal: the status of the proceedings and all procedural documents can be followed via 'The Knight First Amendment Institute' website (link here https://knightcolumbia.org/cases/x-corp-v-center-for-countering-digital-hate )

Musk, meanwhile, has also launched similar proceedings in Texas against 'Media Matters’, where anti-SLAPP legislation is less stringent (Frances Vinall & Timothy Bella, The Washington Post of 21 11 2023 : https://www.washingtonpost.com/business/2023/11/21/musk-media-matters-x-lawsuit-ken-paxton/ )

With MAGA, the United States are at least politically on the way back.

The recent past warns that the judiciary may follow Trump's lead. The ‘Warren Court’ of 1964 is not the US Supreme Court of today.

Conservative Supreme Court Justices such as Clarence Thomas and Neil Gorsuch already called for a revision of the 1964 Sullivan jurisprudence (Adam Liptak, The New York Times of 02 07 2021 : https://www.nytimes.com/2021/07/02/us/supreme-court-libel.html )

Free speech thus narrows to one-way traffic: the tweeting of Musk's power on Twitter, and their abuse of SLAPPs to intimidate and muzzle dissent through the courts.

That suppression of criticism will predictably lead to more corruption, and that, by the way, is Trump's stated agenda, including with his despotic Feb. 10, 2025 Executive Order suspending the Foreign Corrupt Practices Act. In the reforms following Watergate, this legislation was hailed as the crown jewel of the fight against global corruption.

What Trump could not obtain in his first term, he is now doing with all gloves off. At the time, he even encountered (justified) opposition against that suspension from his former Secretary of State Rex Tillerson, who, note, used to be the CEO of ExxonMobil, and refused to pay a bribe, requested by Yemen’s oil minister  (Dexter Filkins, ‘Rex Tillerson at the breaking point’, The New Yorker, 06 10 2017: https://www.newyorker.com/magazine/2017/10/16/rex-tillerson-at-the-breaking-point ).

Next ?

In France, the re-accreditation of the association Anticor - founded at the time by magistrates and still supported - became a veritable “parcours de combattant".

Anticor already exposed numerous files on corruption and is currently following up 148 of them in France (link: https://www.anticor.org )

Anticor's work deserves not only praise but, as a project, similar follow-up outside France.

Meanwhile in Europe, the backlog

In France, Belgium or other European member states, there is so far no specific ant-SLAPP - legislation to counter this imbalance in the courts.

At most, a protection of “lanceurs d'alerte” exists, as also in France, since la loi Waserman (after the name of member of Parliament Sylvain Waserman) of 21 03 2022 implemented the European directive 2019/1937 of 23 10 2019.

Meanwhile, Belgian case law remains extremely reluctant to apply damages for aggravated and reckless litigation. When such damages are allowed, the amount is modest or symbolic, but certainly not dissuasive. Lawyers are also sometimes timid about making such a demand. Some fear that this leaves them vulnerable to facing such a counterclaim themselves the next time: “une pudeur de gazelle” to defend their own client ?

However, the lawyer's independence, deontology and professional responsibility are compromised if the lawyer does not fulfill his role as “first judge” but blindly executes the vindictive instructions of a powerful client.

High-priced lawyers then file lengthy briefs, driving the defendant to extreme legal expense, and thus immediately discouraging him. The point is not to convince the other party of a factual or legal point, but to scare the thunder out of him and, if necessary, to cause years of sleepless nights because of the “timor litis”, the daily fear and nightmare of the trial.

Page stuffing is used as a “chilling effect,” and some defense lawyers fall into that trap themselves, fearing they must win the marathon for the most wide-ranging conclusions to convince the judge. Whereas three pages of sober legal and factual rebuttal should and could suffice.

Even the judiciary then becomes hostage to uselessly complicated procedures, when its already too limited resources would be much better invested in other legal matters.

And now thanks to Europe, here is the catch-up.

The European “toolbox” is ready, including the Directive 2024/1069 of the European Parliament and of the Council of April 11, 2024 “on the protection of individuals involved in public participation against manifestly unfounded claims and abuse of process (”strategic litigation against public participation“)” (link https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401069 ).

Or to put it in the words of the Daphne Caruana Galizia Foundation, “Daphne's law is now official”!

It is now up to the Member States to transpose this directive into national law.

Our Belgian Anti-SLAPP working group - in the wake of the seminar at the Ghent University on 12 12 2022 - has already taken the lead on the initiative of prof. em. Dirk Voorhoof and with some forty members: academics, lawyers, honorary magistrates, representatives of the media, citizens' initiatives and NGOs.

Our trilingual website (link: https://www.slapp.be/nl ) provides information on the SLAPP phenomenon, with numerous examples.

Our (bilingual) Belgian working group has drawn up a “ready-to-use” (trilingual) ‘model law’ with anti-SLAPP measures. Logically, the model law logically and necessarily goes beyond the simple transposition of the European anti-SLAPP directive.

Logical: limiting the scope of the law to cross-border cases would mean that the law would have virtually no impact in practice: after all, over 90% of SLAPP cases are not cross-border, but take place within a single country.

Transposition must not result in an empty (national) box - or, to put it in the old French pharmaceutical parlance: “une poudre de perlimpinpin”.

Necessary: while the directive focuses on civil cases, the proposed model law also includes measures relating to criminal proceedings, given that several SLAPP suits have also taken place in Belgium in the context of criminal proceedings. On the contrary, if the anti-SLAPP law applied only to civil proceedings, more SLAPPs would be likely to occur in criminal proceedings, whereas criminal cases are certain to have an even more intimidating or deterrent effect.

Indeed, our ‘model law’ also contains recommendations from the United Nations, the Council of Europe and the European Commission aimed at increasing vigilance against SLAPPs and providing better support for victims.

This project already inspired legal experts and politicians in other European countries. It will certainly enable the new Belgian federal government, Justice Minister Annelies Verlinden and parliament to get to work straight away on transforming the EU directive into Belgian law on schedule, i.e. by 2026.

Minister Verlinden and various parliamentary groups and politicians already agreed to meet prof. em. Dirk Voorhoof and a delegation of our anti-SLAPP- working group for information, discussion and hearings.

After all, not only do SLAPPs pose a threat to democratic debate, they also unnecessarily overburden our judicial system.

You are welcome to read the model law (already filed in the Belgian Federal Parliament via the proposal 56K0728 of 18 02 2025 by the Green Parties Groen & Ecolo) in Dutch, French and English on the website of the Belgian Anti- SLAPP working group : https://www.slapp.be/nl