Strategic Lawsuits against Public Participation

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STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION

Retaliatory lawsuits intended to silence, intimidate, or punish those who have used public forums to speak, petition, or otherwise move for government action on an issue.

The term strategic lawsuits against public participation, known by the acronym SLAPPs, applies to a variety of different types of lawsuits, including those claiming libel, defamation, business interference, or conspiracy. The term was coined by Professors George W. Pring and Penelope Canan of the University of Denver, who began to study this form of litigation in 1984. Pring and Canan define SLAPPs using four criteria: "[SLAPPs] (1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims), (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance."

In a typical SLAPP, an individual or citizens' group—the target (using Pring and Canan's terminology), or defendant—is sued by the filer, or plaintiff, for alleged wrongdoing simply because that individual or group has used constitutionally protected rights to persuade the government to take a particular course of action. SLAPPs have been directed against individuals and groups that have spoken in public forums on a wide variety of issues, particularly against real estate development, the actions of public officials, environmental damage or pollution, and unwanted land use. They have also been used against those who have worked publicly for the rights of consumers, workers, women, minorities, and others. SLAPP defendants have been sued for apparently lawful actions such as circulating a petition, writing to a local newspaper, speaking at a public meeting, reporting violations of the law, or participating in a peaceful demonstration.

For example, a Colorado environmental protection group opposed a commercial development and was eventually sued by the developer for $40 million. The lawsuit claimed that the environmental group was guilty of "conspiracy" and "abuse of process" (Lockport Corporation v. Protect Our Mountain Environment, No. 81CV973 [Dist. Ct., Jefferson County, Colo. 1981]). The suit dragged on for several years, cost the environmental group much time and money, and eventually resulted in its demise. Although the development did not go forward, many group members vowed that they would refrain from future community involvement out of fear of legal retribution.

A number of real estate developers have tried to prevent subdivision residents from opposing zoning changes by attaching restrictive covenants to sales contracts. A typicalcovenant might stipulate that the purchaser signs the contract on the condition that he or she will not oppose any re-zoning plans for adjacent properties acquired by the developer.

Such a restrictive covenant was successfully challenged in the case of Providence Construction Company v. Bauer, 494 S.E. 2d 527 [Ga. App. 1997]. Providence owned a subdivision in Cobb County, Georgia, and its deeds included a restrictive covenant to keep residents from opposing zoning changes. When Providence sought to have land next to the subdivision rezoned, several residents protested to government officials and circulated petitions. Providence sued for breach of contract and tortuous interference of contractual relations. It later dropped the suit against all but one resident who continued to protest the re-zoning. The resident, Dave Bauer, moved for summary judgment at trial and the court granted his request. Providence went to the Georgia Court of Appeals, which upheld the lower court's ruling. Under Georgia's anti-SLAPP law, plaintiffs must show that their suit is not being filed to suppress the right to free speech. The court said that Providence's covenant was too vague in its limitation of speech, because it prohibited residents from opposing actions that could affect the subdivision's character and property values.

Others who have been targeted by SLAPPs include a group of parents who voiced concern over unsafe school buses at a school board meeting, only to become defendants in a $680,000 suit for libel filed by the bus company, and neighbors who protested renewal of a bar's liquor license and were then faced with an $8 million libel suit initiated by the bar owner.

Judges dismiss the majority of SLAPPs as a violation of constitutional rights, generally on the grounds that the defendant's activities are protected by the Petition Clause of the first amendment to the Constitution. That clause establishes "the right of the people … to petition the Government for a redress of grievances." However, in those cases where a SLAPP is not quickly dismissed, the expense of the litigation for SLAPP defendants, both in time and money, often serves as punishment itself and dissuades individuals from speaking out in the future. Individuals who have been hit with a SLAPP—or "SLAPPed"—often report a feeling of having been sued into silence and feel dissuaded from participating in public life again—quite often the very effect intended by the SLAPP filer. Although a SLAPP filer usually loses in court, he or she may achieve the goal of silencing future political opposition.

For these reasons, the legal system has widely viewed SLAPPs as an example of the use of law for the purpose of intimidation and as a threat to citizen involvement and public participation. SLAPPs, critics contend, attempt to privatize public debate and have a chilling effect on public speech and involvement.

Those who defend SLAPPs claim that SLAPP plaintiffs have as much right to fight for their rights as SLAPP defendants. It is equally wrong, they say, to conclude that all SLAPP plaintiffs are malicious as it is to conclude that all SLAPP defendants have honorable intentions. Moreover, the First Amendment protects free speech but not slander or libel. Most SLAPP defenders dislike the term SLAPP because they feel it can unfairly taint legitimate defamation actions.

SLAPPs date back to the earliest years of the United States, when citizens occasionally were sued for speaking out against corruption in government. Courts generally dismissed such lawsuits, however, and SLAPPs fell into general disuse until the 1960s and 1970s. During those decades a wave of political activism concerning many issues—from the environment to minority rights—sparked suits claiming defamation, libel, and business interference from affected parties, particularly corporations and business interests. By the 1980s and 1990s, many observers claimed that SLAPPs were seriously hampering participation in the U.S. political system.

Individuals and governments reacted to the growth of SLAPPs in a number of different ways. Targets of SLAPP cases sometimes have countersued—a process known as a SLAPPback—often making many of the same claims as the SLAPP filer: malicious prosecution, abuse of process, defamation, and business interference. Those who have filed SLAPP backs generally have been successful in court and have won large cash settlements from juries. Advocates of SLAPP-backs say that they are a necessary deterrent to SLAPP filers.

Rulings of the U.S. Supreme Court have increasingly supported the rapid judicial review and dismissal of SLAPPs. Using standards developed in earlier cases (Eastern Railroad Presidents' Conference v. Noerr MotorFreight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 [1961], and United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 [1965]), the Court ruled in City of Columbia v. Omni Outdoor Advertising Inc., 499 U.S. 365, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991), that the First Amendment's Petition Clause protects "a concerted effort to influence public officials regardless of intent or purpose." The Court held that SLAPPs should be dismissed in all cases except those in which the target's activities are not genuinely directed at gaining favorable government action.

A number of states have passed laws intended to prevent SLAPPs and protect the right to participate in public activism. Washington became the first state to pass an anti-SLAPP law in 1989. By 2002, another 19 states had enacted similar legislation, and still more states were debating anti-SLAPP bills. The Minnesota Citizens Participation Bill of 1994 (Minn. Stat. § 554.01-05), for example, protects public participation by requiring a court to dismiss a SLAPP unless the filer can prove that the target's activities were not directed toward producing government action. The law also shifts the burden of proof to the SLAPP filer and allows the SLAPP target to collect attorneys' fees, costs, and damages if the SLAPP is unsuccessful.