Missouri has a solution to frivolous lawsuits. Lawmakers need to pass it | Opinion

As a litigator in Kansas City, I’ve watched clients face a cruel arithmetic: Speak up on a matter of public concern and risk a meritless lawsuit that costs tens of thousands of dollars to defend, or stay quiet and pay nothing. In Missouri, silence is almost always cheaper. That’s not a failure of courage. It’s a failure of law.

The legal vulnerability comes in the form of what are known as SLAPP suits — strategic lawsuit against public participation. These cases aren’t designed to win on the merits. They’re designed to punish — to bury a defendant in legal fees and procedural misery until the speaker goes quiet or goes broke. The frivolous litigation itself becomes the sanction.

Missouri’s law — one of the nation’s weakest — does almost nothing to stop these lawsuits. The nonpartisan Institute for Free Speech grades every state’s anti-SLAPP statute on a 100-point scale. Missouri earns a 26, a D-minus. Kansas, Oklahoma, Iowa, Kentucky and Tennessee each earn some form of A. Overall, 35 states earn a C grade or better, including 27 A grades.

The reason for Missouri’s poor grade is straightforward: Our current statute protects only speech made in connection with a formal public hearing or government meeting. Write a letter to your local paper, post on social media about a zoning dispute or report on a county official’s spending — and you are largely on your own.

The Missouri General Assembly has a chance to fix this before the session ends May 15 — and should take it.

The gap between the law on paper and the First Amendment’s promise is not merely academic. Ask a local editor deciding whether to run a story on a developer’s cozy contract, or a parent weighing a public comment to a school board about district policy. In Missouri, the risk isn’t losing at trial — it’s losing to the process. And that calculation ripples outward: When one speaker gets sued, every neighbor, journalist and small business owner who might have spoken up takes note.

The fix has been ready for years. In 2020, the Uniform Law Commission finalized the Uniform Public Expression Protection Act — UPEPA — a model anti-SLAPP statute that built on previous successful state laws and now adopted by 16 states. It works on several fronts simultaneously: extending protection to all speech on matters of public concern, creating an early dismissal mechanism so defendants can escape prolonged litigation, permitting immediate appeal when a court wrongly denies that motion and shifting attorneys’ fees to the losing plaintiff — the single most effective deterrent against filing these suits in the first place.

This legislative session, state Sen. Mike Henderson introduced Senate Bill 1067, which would adopt UPEPA wholesale. It passed the Senate 31-0, unanimous and bipartisan, and has backing from groups as ideologically diverse as the Missouri Press Association and Missouri Right to Life. In the House, House Bill 83 — a comprehensive civil procedure bill that includes the UPEPA language — has cleared the Rules–Legislative Committee and moved toward the floor. With the session ending soon, lawmakers have a narrow window to act.

Supreme Court Justice Louis Brandeis once wrote that the remedy for bad speech is “more speech, not enforced silence.” But that principle assumes speakers can afford to speak. A legal system that lets meritless lawsuits function as a private tax on public participation produces exactly the enforced silence Brandeis warned against — not by government edict, but by litigation cost.

Missouri has debated this for years. The model is proven, the coalition is broad and the state Senate’s 31–0 vote removed any doubt about momentum. It is time for the state House to pass S.B. 1067 and give Missourians’ speech the protection it deserves.

Harrison M. Rosenthal is a media lawyer and commercial litigator. He holds postgraduate degrees from the University of Kansas schools of Law and Journalism, including a PhD in First Amendment theory.