New Free Speech Protections in Washington State

Power Imbalance

Powerful people and businesses often send threatening “cease-and-desist” letters to people merely exercising their First Amendment rights.  We have seen this repeatedly in the #MeToo movement with sexual assault cases, and other whistleblower situations where victims face a powerful wrongdoer. 

Even when the powerful have no legal leg to stand on, these letters often work—to silence or “chill” free speech—simply because of the power disparity.  So powerful people keep sending threats, and sometimes filing lawsuits, because they have nothing to lose.  Now, they do.

Washington’s New Uniform Public Expression Protection Act

This year Washington enacted a version of the Uniform Public Expression Protection Act, aimed at protecting free speech from frivolous lawsuits and other attempts to silence First Amendment-protected speech.  The new law, SSB 5009, provides for expedited dismissal and an award of attorney’s fees to people sued for lawfully exercising their First Amendment rights.

Application of Washington’s New Free Speech Law

The law applies to:

a.       Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

b.       Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; and

c.       Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington State Constitution, on a matter of public concern.

For example, if a sexual assault victim reports the crime, she is protected by the Uniform Public Expression Protection Act in a retaliation lawsuit.  A business sued for misconduct cannot re-victimize consumers with retaliation counterclaims.

Exceptions to Washington’s New Free Speech Law

The new law carves out a list of exceptions—claims to which the law does not apply.  For example, a consumer alleging false advertising by a business is not subject to the Uniform Public Expression Protection Act, nor are personal injury victims, or victims of bad faith insurance practices.  This is because the law is intended to ensure access to the judicial system for victims, while deterring powerful people from leveraging their resources to silence everyday people.

Thanks to the amazing team at the Washington State Association for Justice, I got to play a role in drafting the best bill possible under the circumstances for our clients.  Speech-related claims in Washington are complicated by decades of state and federal constitutional law, as well as other statutes like the Uniform Correction or Clarification of Defamation Act, RCW 7.96.  A lot of hard work and difficult considerations went into the drafting of this legislation.

If you or a client has questions about retaliation lawsuits and free speech protection in Washington, please feel free to contact me. 

Law ExplainedAndrew AckleyFree Speech, First Amendment