A View from the First Amendment Trenches: Washington State's New Protections for Public Discourse and Democracy

In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of “democratic legitimation” as the cornerstone of democratic decision making. Dean Post defines “democratic legitimation” as “all efforts” to influence “public opinion.” As Post explains, “[d]emocracy requires that government action be tethered to public opinion” because “public opinion can direct government action in an endless variety of directions.” As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have learned they can file a Strategic Lawsuit Against Public Participation (SLAPP). The purpose of the SLAPP suit is to impede efforts to influence public opinion by intimidating the speaker with expensive and lengthy litigation.

Since the late 1980s, states have reacted to SLAPP lawsuits by enacting anti-SLAPP statutes. Washington State has had a statute in place since 1989 that protects speakers from litigation resulting from statements made to government officials. In 2010, the Washington legislature expanded those protections by enacting Revised Code of Washington 4.24.510, which more broadly protects speakers who comment on matters of public concern. This Article reviews Dean Post’s theory of democratic legitimation and then looks at statutes across the nation and in Washington that are aimed at protecting speakers from litigation that seeks to chill the First Amendment rights of citizens who comment on matters of public concern.

The Article concludes that Washington’s new statute promotes Dean Post’s goal of democratic legitimation.