SLAPP happy

Tuesday, February 17, 1998

It’s a slap in our collective face and a coward’s tactic.

It’s a Strategic Lawsuit Against Public Participation. A relatively
new strain of lawsuit, the SLAPP seeks to put a lid on dissenting voices by threatening legal action.

The true SLAPP suit is an artful and insidious (shall we say “lawyerly”?) end-run around the First Amendment’s guarantee of “the right of the people … to petition the Government for a redress of grievances.” For indeed, if Congress can’t muzzle individuals for speaking out on matters of public concern, should neighbor be permitted to sue neighbor into silence on the same matter? Or worse, should government officials be permitted to cow, by dint of lawsuit, those pesky civic activists who disapprove of the government’s handling of public business?

George W. Pring and Penelope Canan, two University of Denver Law
School professors, coined the acronym in their book, SLAPPS: Getting Sued
for Speaking Out
. SLAPPs have flourished since their emergence in the 1970s. The pair cites a variety of petition activities for which outspoken citizens over the last 25 or so years have been sued:

  • testifying against a real-estate development at a zoning hearing
  • complaining to a school board about unfit teachers
  • reporting official misconduct
  • demonstrating peacefully for or against government action
  • testifying before Congress or a state legislature
  • campaigning for or against a ballot issue
  • collecting signatures on a petition.

In the case of private plaintiffs, the libel suit is the SLAPP of choice. Typically, there is a big-guy-versus-little-guy dynamic, whereby big guy sues little guy into silence.

For example, in Southern Maryland, Dominic F. Antonelli Jr., whom the Washington Post described as a “developer and Washington parking magnate,” sued a grassroots group called SACReD—South Arundel Citizens for Responsible Development—after the group opposed his plans to develop a bayside community by showing up at public hearings, handing out fliers, and filing a suit against the county to prevent the development. Thus far, the group has weathered the pending suit, but it has been a terrific drain on resources and time, says SACReD’s president.

Perhaps an even more ominous incarnation of the SLAPP is the instance
where a government entity or official sues a citizen who, to the government’s consternation, has criticized the official.

Such was the drama that played out in Towamencin Township, Pa., when one Robert Smith, president of a citizens watchdog group, publicly protested the township’s illegal backdating of documents in order to allow building to continue in an area plagued by an overload of sewage. The township’s attorney sued Smith for what the plaintiff argued was a personal accusation when Smith exclaimed in a public meeting: “You should have told [the building inspector] to date them [August] 14th instead of the 8th.”

Smith spent $10,000 in legal fees defending the suit before the official dropped it.

Though SLAPPs typically come in the form of libel suits, government
officials often use different types of suits that smell very much like SLAPPs. In one North Carolina county in 1994, John Bussian—a parent—sought, under the open-records law, documents relating to the school board’s management of a restructuring plan. So incensed were school officials by Bussian’s audacity that the board, on taxpayer time and money, sued him in state court seeking a declaration that the records were off limits—as well as seeking a pound of flesh from Bussian himself for litigation costs. The suit ended, as so many of these suits do, in Bussian’s absolute vindication.

But one has to wonder what psychic effect the mere threat of these suits has on public participation. With such a sword over his head, is the otherwise vocal citizen more likely to sit it out on issues of the moment? Who, after all, needs the hassle of defending a lawsuit brought by the government, irrespective of whether or not the thing has merit?

Which leads back to a point Pring and Canan make over and again: In the typical SLAPP suit, service of process, not the underlying substance of the claim, becomes a retaliatory end unto itself. The SLAPP transforms the open public forum into a nightmare: “[S]uddenly ‘city hall,’ becomes ‘courtroom,’ ‘zoning’ becomes ‘slander’; ‘permit denial’ becomes ‘$100,000 in damages,’” Pring and Canan write.

What makes SLAPPs even more troublesome is that there is never any clear answer as to when someone has been defamed and deserves redress. State libel laws demonstrate that our democratic polity collectively endorses limits on speech that injures and defames persons without serving any public interest.

However, SLAPPs, by definition, involve matters of public interest. And while protecting those misguided activists who lie or act on bad motives may seem unpalatable, the alternative is censorship. In a free society that encourages enlightened debate, truth, not a court order, is the preferred corrective.

Happily, the list of remedies against SLAPPs is growing. First, a defendant may take the somewhat ironic step of countersuing or “SLAPPing-back” his assailant for malicious prosecution and abuse of process. The Sierra Club in the late 1970s countersued a litigious real estate developer whose project to develop a scenic ranch in Sacramento the group had opposed. When a court let the Sierra Club’s countersuit go forward, the developer settled for an undisclosed amount. Such SLAPP-backs are becoming a staple response.

Also, at least 10 states have enacted laws reversing the chilling effect SLAPP suits have on public participation. These anti-SLAPP statutes are getting some mileage: In May 1997, a Los Angeles Superior Court threw out a defamation suit by Kato Kaelin against Globe Communications on an anti-SLAPP motion. Globe magazine had run an article detailing statements by a friend of Kaelin’s to the effect that Kaelin had admitted he’d seen O.J. Simpson dressed in dark clothing the night Ron Goldman and Nicole Brown Simpson were murdered, and that Kaelin had helped O.J. hide blood-soaked clothing. As an often-willing participant in one of the great dramatic courtroom spectacles of our time, Kaelin must now face the often discordant music of rumor and hearsay.

The best procedural remedies for SLAPPS, then, are SLAPP-back suits and, when available, state laws that discourage SLAPP-happy plaintiffs. One more remedy that might be especially effective against the government plaintiff: an all-out campaign to shame the offending agent or agency in as many public halls, town squares and op-ed columns as are available.

Fitting it is that, in our rough-edged society and freewheeling democracy, one of the best defenses against government-sanctioned gags is to scream ‘foul’ at the top of our lungs.

Travis Hawkins is reporter for The Tennessean and a (non-practicing) attorney.