How the Left and the Right Use Legal Threats to Intimidate Critics

PHOTO CREDIT: (WTTW News)

The Chicago Teachers Union (CTU) is pursuing a defamation lawsuit against the conservative Illinois Policy Institute, its affiliated Liberty Justice Center, and an institute executive. Who imagined this mainstay of deep-blue Illinois would go so far in imitating President Trump?

The CTU lawsuit alleges that the defendants waged a “smear campaign” by calling the union “toxic” and accusing it of “cooking the books,” engaging in fraudulent accounting, and committing potentially criminal conduct. The defendants have criticized the union for failing to provide timely financial audits to its members.

Some of those accusations are factual and must be defensible. But “toxic” is plainly an opinion, and heated claims about the financial stewardship of a powerful public-sector union belong at the heart of public debate. CTU is a major political actor whose influence extends far beyond collective bargaining. It should answer its critics with facts, not litigation designed to punish them.

The Chicago Teachers Union may find itself at odds with Illinois’ anti-SLAPP law, signed by Gov. J.B. Pritzker in January. This law protects defendants from liability when they exercise their rights to petition, speech, and association. But that won’t keep the targets of this lawsuit from having to bear the legal and emotional costs of mounting a defense.

Nor should we imagine that the use of lawsuits to intimidate critics is not just a tactic of the Saul Alinsky left.

President Trump is threatening the Center for American Progress (CAP), a left-wing think tank, with a $5 billion defamation lawsuit over a report concluding that violent crime declined at roughly comparable rates in cities with and without National Guard deployments. CAP refused his demands for a retraction, apology, and compensation, calling the threat “a transparent attempt to silence us.”

In either case, the plaintiff would face the formidable standard imposed by New York Times Co. v. Sullivan. Neither a president nor a powerful public-sector union can recover damages for defamatory statements on matters of public concern without proving “actual malice.” This would require the plaintiff to show that the defendant knew the charges were false or acted with a reckless disregard for whether they were true or false. In any event, whether a policy deterred crime – or what an opaque public union budget might be hiding – is precisely the kind of contested analytical judgment Americans must be free to debate.

While these legal threats are performative, we should not underestimate the financial and human costs of such threats. President Trump’s threatened suit is especially intimidating because he is both a billionaire and the occupant of the world’s most powerful office. The underlying principle is the same in Chicago and Washington: Powerful institutions and people can use crushing legal expenses to deter their critics and chill criticism.

Conservatives should defend CAP’s right to challenge Trump. Progressives should defend the Illinois Policy Institute’s right to criticize the CTU. Otherwise, each side merely establishes precedents that will eventually be used against it.
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The weaponization of expensive lawsuits as a tactic of intimidation is not new – but it is now being practiced on a scale that should concern every American who values free and open expression. It is up to courts to apply anti-SLAPP lawsuits, which exist in some form in 40 states, and other legal protections to require those who file frivolous lawsuits to bear the resulting costs – including defendants’ attorneys’ fees.

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