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A SLAPP in the Face for Free Speech

2011 May 18

If you aren’t a lawyer or familiar with the law, you probably have never heard of a SLAPP.  But if you blog, write letters to the editor, or state any personal opinion in any public forum, you need to know what a SLAPP is, and how to protect yourself from it.

SLAPP stands for Strategic Lawsuit Against Public Participation, specifically designed to censor free speech through intimidation and to silence critics by burdening  people “with the cost of a legal defense until they abandon their criticism or opposition.”  Anyone can bring a SLAPP suit, and they are often intended to go on for as long as possible (some have lasted for years) in order to exhaust—financially and otherwise—the target(s) of the suits, and to give in to the demands of the plaintiff.

I first learned about SLAPPs while listening to the NPR program On the Media, where SLAPPS were a feature story.  Reporter Nazanin Rafsanjani interviewed University of Denver professors Penelope Canan and George Pring, who coined the term SLAPP.   During the interview, a few examples of SLAPP suits were given: a Rhode Island homeowner sued for complaining to the government that her drinking water might be contaminated, or New York citizens sued for giving public testimony against a proposed real-estate deal, etc.  Canan was quoted as saying that “most people have no idea that, for example, the owners of a landfill can sue someone who tells the government they fear their water is polluted.”  Because this presents a very serious risk to many private citizens, Canan worries about the publicity of SLAPP suits, because “somebody in the reading or listening audience has never heard about ‘em before, and then they go, oh, my gosh, I never knew this. There’s a risk to my speaking out. I better not go to the public hearing.”

That’s exactly what I thought as I listened in horror to the podcast of the show.  I thought about my own writings for The Busy Signal, the public testimony I’ve given at the Maine State House, and letters to the editor I’ve written, and wondered what I would do if someone I disagreed with decided to sue the pants off of me.  Not to gain what little assets I possess, but rather to silence me and to intimidate others.

Reporter Nazanin Rafsanjani further demonstrates that this is not an irrational fear by describing the case of Comins vs. VanVoorhis.  Florida man Christopher Comins shot two dogs (Mr. Comins was recently acquitted of criminal charges) and the shooting was recorded by two Irish tourists, who then uploaded the footage to Youtube.  The story was widely reported in national and local news.  Graduate student Matthew Van Voorhis, wrote a post on his blog condemning Mr. Comins.  Mr. Comins then sued Mr. Van Voorhis for defamation.  Why isn’t Mr. Comins suing CNN, the Orlando Sentinel, or the local T.V. outlets for defamation as well?  Van Voorhis argues that Mr. Comins is suing him not because be believes he was defamed, but simply to shut him up, and that the defamation suit is a SLAPP.  In the interview for On the Media, Van Voorhis said:

If you sue a blogger, you not only shut that person up but you also — other bloggers become intimidated and censor themselves because they see that people are being sued for this and that it’s very costly to defend oneself against the lawsuit.

Van Voorhis’ lawyer, Mark Randazaa, was also interviewed and asked why Van Voorhis was being sued, and not the larger media outlets that also reported the story.  Randazaa explains that if Mr. Comins “had gone after The National Enquirer or if he had gone after The Orlando Sentinel, they have more money than him and they could probably bury him in legal fees. But he thought that this guy who’s just a graduate student at the University of Florida might not be able to defend himself as well.”

SLAPP suits effectively limit free speech through intimidation and the abuse of the courts system, and it is shocking that more hasn’t been done to curb these frivolous, unconstitutional, and often financially devastating law suits.  However, there are ways you can protect yourself from SLAPP suits.  Many insurance companies offer media liability policies at a variety of levels.  Libel insurance is also usually covered under homeowner’s (and some renter’s) insurance—or can be added to the policy for an additional fee.

There are legal protections against SLAPPs too, but they vary state by state, and only 26 states even have laws to reinforce protection of free speech and against SLAPP suits.  David Cohen (D-TN) sponsored federal anti-SLAPP legislation, known as “The Citizen Participation Act”  (H.R. 4364).  H.R. 4364 would enhance federal law protections for the right to petition and to free speech by creating legal procedures for SLAPP suits.  The bill would provide the following protections and processes:

Immunity for Petition Activity

  • This would provide qualified immunity from civil liability for those making claims/statements “without knowledge of falsity or reckless disregard of falsity”.

Special Motion to Dismiss

  • This provision would allow a party to file a special motion to dismiss any claim “arising from an act or alleged act in furtherance of the constitutional right of petition or free speech” within 45 days of when the suit was filed.  The party filing the special motion to dismiss bears the burden of “making a prima facie showing” that the claim arises from “an act in furtherance of the constitutional right of petition or free speech.  If this burden is met, the responding party (the party that filed the suit and claims defamation) must “demonstrate that the claim is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.”
  • This provision also grants an expedited hearing on such motions to dismiss, requiring the court to “issue a ruling as soon as practicable.”  Appeals can be made immediately if a special motion to dismiss is denied.

Federal Removal Jurisdiction

  • This provision would give federal jurisdiction over cases filed in states without their own anti-SLAPP legislation if any person asserts as a defense the immunity provided in this legislation.

Special Motion to Quash

  • This creates a provision for protecting anonymous speech by creating an avenue to quash a subpoena, discovery order, or request if a person’s personal identifying information is sought if it is in connection with a pending action arising from an “act in furtherance of the constitutional right of petition or free speech.”

Fees and Costs

  • This provision allows the party who prevails in a special motion to dismiss or quash to recoup litigation and “reasonable” attorney’s fees.

Bankruptcy Non-Dischargability of Fees and Costs

  • This would bar persons or companies from discharging fees or costs awarded to defendants through bankruptcy, regardless of whether the costs or fees were awarded in state or federal court.

H.R. 4364 is important, because creating a federal anti-SLAPP law would end forum-shopping: the disparity in state anti-SLAPP laws (or the complete lack of them in some states) allows plaintiffs to shop for the most favorable legal forum, basically allowing plaintiffs to pick a state in which the anti-SLAPP legislation is the weakest—or non-existent—and where they would therefore have more success in pursuing a SLAPP suit.  This has the effect of making First Amendment rights more protected in some states than in others.  Peter Kurdock, in his article “The Need for Federal Anti-SLAPP Legislation” for the American Bar Association, agrees with this assessment

SLAPPs aren’t just random, meritless lawsuits. They are lawsuits that directly attack First Amendment rights. The level of protection for First Amendment rights should be uniform. It should not depend on where a defendant is hauled into court or how clever a pleader the plaintiff’s lawyer is.

The bad news is that H.R. 4364 was introduced over two years ago (December 2009), and seems to have stalled in the judiciary committee.  Somehow I think it is unlikely the bill will reemerge anytime soon.  I just know I’ll keep writing, and speaking out, and writing to my public officials.  I hope you all will too.  And, if you care about free speech, I hope you call your senators and representatives, and ask them whatever happened to H.R. 4364.

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