Back in July I wrote about how Lori Kilchermann — an editor at the Ionia, Michigan Sentinel-Standard — filed a defamation lawsuit against local citizens who complained about her reporting and called her a "yellow journalist." As I explained then, the suit was patently frivolous and abusive because it attacked statements of opinion protected under the First Amendment:
The problem is, of course, that statements of opinion are absolutely protected by the First Amendment when, as here, they are premised on known and disclosed facts. "Yellow journalism" is a classic example of rhetorical flair that is self-evidently opinion because its application is based on issues of fairness and bias on which different observers will differ. "Editorializes the news" is another classic example; show a political news story to partisans of two parties and you'll get two opinions on whether it editorializes.
Via the Huffington Post, I see that a judge has agreed and dismissed Kilchermann's censorious lawsuit. Ionia County Circuit Court Judge Suzanne Hoseth-Kreege dismissed the case, but regrettably failed to award sanctions:
After hearing arguments Friday Hoseth-Kreeger ruled that, as editor of the local paper, Kilchermann is a public figure. Kreeger found the statements by the defendants were opinions and were protected speech under the First Amendment. She also denied a request to impose sanctions against Kilchermann for filing what the defendants say was a frivolous lawsuit.
That means that even though the defendants are off the hook now, they are tens of thousands of dollars poorer. In that sense Kilchermann and her lawyer Carrie Gallagher of Duff Chadwick & Associates PC
succeeded in their effort to abuse the legal system to silence critical speech:
Ken Thompson, one of the defendants, with his wife, Darlene, said they plan to file a request with the state Court of Appeals to have Kilchermann cover their attorney fees. They said the cost of defending the lawsuit is around $30,000.
“We had to pay for justice,” Ken Thompson said Monday, Oct. 14.
Michigan doesn't have an anti-SLAPP statute. Anti-SLAPP statutes generally make it mandatory for the court to award fees and costs to the prevailing defendant. In states without anti-SLAPP statutes, judges are generally reluctant to sanction plaintiffs and their lawyers for censorious lawsuits. That may be from ingrained deference to lawyers, or from a judicial tendency to "split the baby" by granting a motion to dismiss but denying sanctions. This kind of case — in which a patently frivolous lawsuit can cost citizens tens of thousands of dollars without ready recourse — highlights the need for robust anti-SLAPP statutes in every state.
People make mistakes. A legal threat in response to an insult could be a mistake, uttered in the heat of the moment. If the threatener later retracts the threat and apologizes, it may be appropriate to forgive and forget. But a lawsuit is not a temporary mistake. It's a deliberate and prolonged course of action. Here, Lori Kilchermann — putatively a journalist, relying on the protections of the First Amendment — attempted to silence critics through a frivolous lawsuit, and stuck to her guns when defendants pointed out the patent flaws in her case. Nobody should ever take Lori Kilchermann seriously as a journalist again, and we should question the judgment of any journalistic institution that employs her.
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