How you can still lose while winning in court

Randy Evans, executive director
Iowa Freedom of Information Council

This article is free to use and publish in your publication.

Many years ago, during a conversation with an old lawyer, he made a comment I still remember: “You can sue the bishop of Boston for bastardy, but that doesn’t mean you are going to collect.”

It was Frank Karpan’s way of reminding a young editor that merely filing a lawsuit is not the most important occurrence in a dispute. The outcome is.

My friend’s Frank-isms have been quoted in these columns before. My favorite is the rarely wrong observation, “I never had a client listen himself into trouble, but I’ve had plenty who talked themselves into trouble.”

Frank’s comment about the bishop occurred back when it was easier to figure out winners and losers in court fights. These days, however, someone can win in court but ultimately lose, because the cost of a skilled legal defense can be staggering.

A bill in the Iowa Legislature tries to address this legal conundrum, and lawmakers’ efforts are worthy of support.

House File 456 was unanimously approved in the Iowa House. A Senate subcommittee approved the bill last week, moving it closer to a final Senate vote.

This is an important bill because retaliatory lawsuits can have a profound effect on people’s freedom of expression — particularly when cases are filed to intimidate opponents or critics from speaking out on matters of public concern or when cases try to discourage newspapers from reporting on these matters. 

House File 456 is called the anti-SLAPP bill. The acronym stands for strategic lawsuits against public participation. 

The bill establishes an expedited process for judges to decide lawsuits arising from people or businesses exercising First Amendment rights on matters of public concern. It is not unusual for such cases to move at a snail’s pace in court, even when the issue has little merit. That delay translates into higher costs for the defendant.

Under House File 456, if such a freedom-of-expression case is decided in favor of the defendant, the plaintiff would be responsible for the defendant’s reasonable attorney fees.

Two Iowa cases illustrate what is at stake with “SLAPP” suits.

In 2018, a Carroll police officer sued the Carroll Times Herald for reporting on his sexual relationships with two teenagers, including a high school senior who moved in with him after a fight with her parents. The newspaper also reported the officer was hired in Carroll after being fired in Sumner, in part for inappropriate Facebook messages to a 16-year-old girl in that town.

The officer accused the newspaper of libel, though he admitted having sex with the high school girl and knew his actions were wrong. But it still took nearly a year, and tens of thousands of dollars in legal expenses, before the judge dismissed the lawsuit. 

Doug Burns, the newspaper’s co-owner, said while the paper was victorious, the case was still devastating financially. “There’s a lot at stake when you’re facing something like this,” he told the Washington Post.

There’s a lot at stake in a case now before the Iowa Supreme Court. It involves Richard Bauer, a businessman in the Woodbury County town of Sloan, who sued an area resident, Bradley Brinkman.

Bauer manages an apartment building owned by a family trust. He first sued Sloan city officials for not stopping the owner of a dog grooming and boarding business from erecting an exercise area on a lot next to his building.

The owner of the dog business went onto Facebook to comment about the dispute. Brinkman joined the discussion and compared Bauer to feces and said he was “nothing more than a slum lord.”

Bauer sued Brinkman for libel, but the judge granted summary judgment in Brinkman’s favor. The Iowa Court of Appeals upheld the ruling. 

“Brinkman’s comments may have been vulgar, offensive, insulting, and just plain rude,” the appeals court said, “but they did not rise to the level of defamatory statements because they were expressions of opinion protected by the First Amendment.”

Bauer has asked the Supreme Court to overturn the appeals court decision.

The American Civil Liberties Union of Iowa, in a legal brief to the Supreme Court, explained the importance of the case: “To allow the litigation against Brinkman to proceed to the jury based on these figurative epithets would chill free speech and debate on matters of public concern on social media in Iowa.”

Winning is not necessarily the top goal of SLAPP lawsuits, the ACLU said. Instead, the motive is to silence and harass critics by forcing them to spend time and money defending themselves against meritless claims.

Iowans should use their First Amendment rights and tell senators to support House File 456.

Randy Evans is executive director of the Iowa Freedom of Information Council. He can be reached at IowaFOICouncil@gmail.com.