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Melania Trump Melania Trump

Melania Trump’s defamation suit against a Maryland journalist is getting SLAPPed.

Webster Tarpley, who runs an eponymous news website, faced Trump’s ire after he published an article reciting rumors about her past work as a model, including that she may have worked as an escort—an allegation she denies. She sued Tarpley last month, along with the British tabloid the Daily Mail, which published similar claims.

Tarpley retracted his article in August, and apologized to Trump “for any duress and harm she may have endured.”  The Daily Mail also retracted its article about the wife of Republican presidential nominee Donald Trump.

Tarpley’s lawyers are fighting back against the  defamation suit, asking a Maryland judge this month to toss Trump’s claims under a state law aimed at preventing “strategic lawsuits against public participation,” or SLAPPs. The law gives defendants such as Tarpley an early opportunity to knock out lawsuits that they believe chill their free speech rights.

But Tarpley is at a disadvantage, according to First Amendment lawyers who say that Maryland’s anti-SLAPP law is among the weakest in the United States. Critics of the statute have a long list of complaints, including that it places too heavy a burden of proof on defendants, lacks deadlines for judges, and doesn’t require the plaintiff to pay the defendant’s legal fees if the case is dismissed.

“The whole idea behind an anti-SLAPP law is not to force somebody to shell out a lot of money to defend something that is obviously aimed at constitutionally-protected speech. You really don’t have the teeth you need when an anti-SLAPP law like Maryland’s doesn’t require attorney fees,” said Charles Tobin, who chairs the national media practice at Holland & Knight.

Tarpley isn’t putting all his hopes in getting Melania Trump’s case dismissed under the anti-SLAPP law—he’s alternatively asked the Montgomery County Circuit Court judge to toss the case for failing to state a viable defamation claim. But the case offers a high-profile test of an anti-SLAPP law that media groups and lawyers have for years unsuccessfully tried to convince the state legislature to reform.

Tarpley’s lawyer, John Owen of Harman, Claytor, Corrigan & Wellman, said in an email that although the Maryland law doesn’t provide for attorney fees, “in large part, I don’t believe that the statute, as to the First Amendment freedoms [it] is designed to protect, is stronger or weaker than other jurisdictions.” He noted that the scope of the law, which covers “any issue of public concern,” is on par with anti-SLAPP laws elsewhere.

Melania Trump’s lawyer, Charles Harder of Harder Mirell & Abrams, did not immediately return a request for comment. Lawyers for the Daily Mail have yet to enter an appearance in the case. Tarpley’s lawyers have asked the court to split up Trump’s lawsuit, arguing that the claims against the Daily Mail aren’t related to the claims against him.

Tarpley’s lawyers called Trump’s lawsuit “the epitome of a SLAPP suit” in their motion to dismiss the case. They argued that the case was brought in bad faith because it failed to state a claim for defamation and because Trump filed it even after Tarpley took down the article at issue in response to a request by her lawyers.

“This is precisely the type of litigation that the Maryland anti-SLAPP statute was enacted to prevent,” they wrote.

In Tarpley’s retraction he wrote on his website that “the briefing in question was not diligent in fact-checking or maintaining a healthy distance between innuendo and fact.”

Twenty-seven states and the District of Columbia have some version of an anti-SLAPP law, according to the Public Participation Project, an advocacy group that has pushed for a federal anti-SLAPP law. State laws vary in scope and strength. Maryland’s took effect in 2004. Timothy Maloney of Joseph Greenwald & Laake in Greenbelt, Maryland, said the state’s law has mostly been invoked in cases between real estate developers and community critics—cases involving the press are rare, he said.

Laura Prather, who leads the media law practice groups at Haynes and Boone, said that Maryland is the only state with an anti-SLAPP law that requires a defendant to show that the plaintiff brought a case in “bad faith.” Other state laws focus on the merits of the lawsuit, but Maryland’s law places the burden on the defendant to show the plaintiff’s intent, which can be difficult to prove early on, Prather said.

“That’s going to create a fact issue in so many instances that it really sort of swallows up the statute,” she said.

Kevin Goldberg, a First Amendment lawyer at Fletcher, Heald & Heath, said that the law’s requirement that a defendant not act with “constitutional malice” also puts the burden on the defendant.

“It is actually pretty weak relative to some other state laws,” Goldberg said. “In most anti-SLAPP laws … really all the defendant has to do is show a statement was made with regard to something of public concern, and it shifts the burden back to the plaintiff to show a likelihood of success.”

Maryland’s law gives judges the authority to put the case on hold until the anti-SLAPP motion is resolved, but it’s not mandatory. The law also doesn’t set deadlines for judges—it says that a court should hold a hearing “as soon as practicable.”

“These suits are filed just to burn money, so the longer it stays in the court system, the more expensive it is for journalists, and that really has a chilling effect,” said Rebecca Snyder, executive director of the Maryland-Delaware-D.C. Press Association, which has lobbied for changes to the law in the Maryland legislature.

A reform measure that would have addressed some of critics’ concerns was introduced in the Maryland legislature earlier this year, but failed to gain traction.

“We’re always grateful there’s a law on the books, but in Maryland it’s not as strong as we would like,” Snyder said.

 

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman

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