How to SLAPP back
As far as acronyms go, SLAPP is a pretty good one.
Short for “Strategic Lawsuits Against Public Participation,” SLAPP also connotes the usual motive for such lawsuits — to punish individuals for speaking. The most recent example of a SLAPP is the lawsuit brought by the San Francisco 49ers to stop a citizen-led petition drive to overturn taxpayer funding of the team's new football stadium.
The 49ers' SLAPP is similar to those brought by others in recent years. Companies, public officials, government agencies and developers have sued private citizens for writing letters to the editor, testifying in public hearings, complaining to public health agencies and demonstrating against government action. In these lawsuits, the corporation or official typically claims that the private citizen has made false statements that somehow have damaged reputations or unfairly interfered with a governmental process.
Winning the lawsuit, however, is rarely the dominant motive for bringing it. Instead, the goal is to silence opposition. A vocal critic of a developer's requested zoning change, for example, is understandably likely to tone down his opposition after he is SLAPPed. Even if the critic stands his ground, however, the SLAPP deters others from speaking against the proposal or issue involved.
Recognizing that SLAPPs are designed to discourage citizens from exercising their First Amendment right to petition government concerning their grievances, many states have adopted legislation to limit SLAPPs. Common elements of these state laws:
- Requirements that the entity or person bringing the SLAPP demonstrate early in the case that it is likely to prevail.
- Provisions that allow the person sued in a SLAPP to seek an expedited hearing.
- Limits on the costly fact-finding discovery process.
- Sanctions that permit the person sued in a non-meritorious SLAPP to recover his or her attorney's fees and costs.
While these measures seem to have reduced the number of SLAPPs being filed in many states, the 49ers' lawsuit demonstrates that SLAPPs remain a dangerous weapon in a large corporation's political arsenal. This is especially true because California's anti-SLAPP legislation is considered by many to be the model that other states should follow.
The primary problem with most anti-SLAPP laws is that they fail to address the real motive for bringing the suits. The 49ers, for example, probably are not overly concerned about whether they can convince a judge early in the case that they can win the suit. In cases about the truth or falsity of statements — particularly statements concerning political issues — both sides usually can present evidence in support of their cases.
Because most judges are reluctant to decide these disputes of fact on an expedited basis, the 49ers and other SLAPP proponents have a good chance of surviving early attempts to dismiss their suits. If they do, the targets of their SLAPPs face the substantial costs associated with discovery and a jury trial.
While anti-SLAPP laws may ultimately require the SLAPP proponents to pay these costs, this possibility surely will not dissuade multi-million dollar organizations from pursuing their bullying actions. On the other hand, the costs of defending against SLAPPs are not so easily borne by citizens or groups of citizens, even knowing that these costs later may be reimbursed. The economic disparity often present in SLAPPs substantially negates the deterrent effect of the fee-shifting sanctions.
Even if a SLAPP is expeditiously decided in favor of the target, the SLAPP proponent often succeeds in quieting opposition during a critical time. A target's victory in a SLAPP means little if the zoning hearing already has been concluded or the time for submitting a petition has expired. An anti-SLAPP measure is not truly meaningful unless it eliminates the incentive to file a SLAPP on the eve of an important vote, meeting or deadline.
Perhaps the best way to eliminate this incentive is to include in anti-SLAPP bills a provision that would permit the judge to stay the governmental action at issue pending the resolution of the SLAPP. If such a provision were in place, a developer's zoning request would not be considered while the SLAPP was pending. In the 49ers' case, all planning and construction of the stadium would be halted until the SLAPP was decided. If such a provision were in place, you could be sure that the 49ers would not have filed their suit.
And that, after all, should be the goal of anti-SLAPP legislation — to prevent the suits from being filed. If a SLAPP proponent believes that a judicial determination of who's telling the truth in the political arena is important enough to justify a SLAPP, then the court should make that determination before the government body or voters involved make their decision. If the proponent believes that the desired judicial determination is not important enough to justify delaying the project at issue, then no basis exists for allowing litigation that chills important constitutional rights.
In writing of SLAPPs, New York Supreme Court Judge J. Nicholas Colabella once noted: “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” This threat requires that anti-SLAPP laws be strong and certain. If anyone is to feel as though he has a gun to the head, it should the SLAPP proponent, not the SLAPP target. Giving judges the power to stay governmental actions while SLAPP suits are pending undoubtedly would accomplish this result.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.