SLAPP, Crackle Pop — Help, They’re Suing Us!

Congratulations on being sued for your activism. You should be gratified, but instead are probably freaked out.

Millions of activists and public officials struggle for the public good for decades without being sued for their work. That’s because the power brokers they are ticking off can handle them with the usual routine tactics. If you are getting sued, it’s probably because your opponents know that you are doing something extraordinary–truly threatening their plans, instead of being predictable or predictably conventional.

You spoke up at a public meeting—and are getting sued for it. Or, a public official voted against a corporation’s pet project–and she got sued. It’s supposed to seem like a calamity. You’re supposed to be frightened and act like a rabbit: freeze, then run and hide. Your panic is the Most Desired Response, though they’d also like you to quit your political participation and double down on your shopping or bowling, or whatever you do when not in the throes of democratic activism.

I write this not as a lawyer, but as a corporate anthropologist, activist, and people’s legal historian. This is not legal advice, but useful background and history for activists. The closest thing to legal advice you’ll get here is this: GET A LAWYER. This is a time to get legal assistance, preferably someone who is familiar with SLAPPs and the use of lawsuits to intimidate. (Pro bono or inexpensive legal help is available in many communities, but that’s not the topic of this post.)

Before I dish out some succinct details, history, and ideas on how to handle this sort of intimidation effort, here are the basics.

  1. Be flattered. Why be gratified at being sued? Because the powers that usually get their way without much brouhaha feel threatened. Instead of just doing what usually works–sending a batch of lawyers and experts to a hearing, taking out a full-page ad in the local paper, offering a portfolio of college scholarships to locals, and planting a well-publicized handful of trees–“they” have taken the trouble to venture into lawsuit territory. You are getting special treatment. Lawyers are expensive, for them, too.
  2. This is not new. This kind of lawsuit to shut you up and shut you down has been around for generations, and even has its own acronym: SLAPP, for Strategic Lawsuit Against Public Participation. (More below).
  3. There are special laws to protect you. The SLAPP strategy is so standard, and so well-established, that more than half of the states have laws to de-fang it. There have also been efforts to pass federal legislation to address the issue. (The Citizen Participation Act of 2009.)
  4. “They” are counting on your ignorance. Like many forms of intimidation, SLAPPs only work if you are not familiar with them, and haven’t learned how to handle them. So read on.
  5. There’s lots written about SLAPPs. I first wrote about them in 1994, and they weren’t new then. I wrote a longer article on SLAPPs that is full of good examples and more details. I’m revisiting SLAPPs on this blog now because I’ve realized that despite decades of attention, they’re still working to intimidate.
  6. You can sue them back for SLAPPing you. It’s called a SLAPP-back suit and they have a long history of success, often including monetary damages.

What is a SLAPP?

When people with easy access to legal resources file lawsuits intended to discourage free speech and discussion about public issues, that’s a SLAPP.

One legal scholar defines a SLAPP as “a pernicious form of meritless legal action intended solely to retaliate against the exercise of petition and speech rights.” (Andrew L. Roth, in a 2016 article in BYU Law Review).

SLAPPs are filed against citizen activists, public officials, environmental groups, whistleblowers, and complaining consumers, among others.

The point of a SLAPP, for the filer, is not the suit itself, but the stress, fear, expense, and anguish that it will bring to those being sued. Filers do not expect to “win” the lawsuit (“winning” is called prevailing on the merits), but to harass citizens for speaking out. SLAPP filers want to drag you through heck and great expense in the hope that you will abandon your apparently effective activism and public speech.

SLAPPs have been filed against people for writing letters to health officials, elected representatives, newspaper opinion pages, and mayors, among many others. For making statements to government regulatory agencies such as the EPA, the Office of Surface Mining, the Bureau of Land Management (BLM). For circulating petitions, holding candlelight vigils, for calling a landfill a “dump.” In other words, for participating in the democratic process. If you’ve been SLAPPed, you’re in good company.

How Do SLAPPs Work?

They work by scaring you.< They accuse activists of things like defamation, libel, tortious interference with business, restraint of trade, contract interference, conspiracy, abuse of process, nuisance, constitutional violations, or other truly scary sounding things. The lawsuit filed against you can mention huge sums of money—like millions of dollar$-- for supposed "damages" to reputation or businesses or property rights. It can request that you answer numerous detailed questions under oath, often in the presence of lawyers and official court reporters (specialized and expensive stenographers).

It can ask for various files, papers, records, and so forth that would require much work on your part to gather.

Requests for information are usually collectively called “discovery,” and part of a SLAPP often involves dragging out discovery over a long period of time to make it as scary, unpleasant, intimidating, and expensive as possible.

SLAPPs stop working when you recognize them for what they are (intimidation tactics), face them, and deal with them. Like the spooky monster that you once thought lived under your bed.

History of the SLAPP Concept

The term SLAPP was coined by two professors (George W. Pring and Penelope Canan) in the mid-1980s. They wrote it up in a famous book called SLAPPs: Getting Sued for Speaking Out (1996). Since then, there has been a lot of discussion on them in numerous law reviews and among activists. One of the most promising angles is the emergence of the anti-SLAPP law, and movement on how to adjust these laws to fairly address various Internet applications. Dozens of states currently have anti-SLAPP laws.

What is Anti-SLAPP Law?

It’s a law that protects important public speech by making it easier to dismiss suits intended to suppress it. Basically, under such a law, if your situation meets fairly standard criteria of a SLAPP, then you can use special provisions of the law to try to get the lawsuit dismissed before you have to go through the usual time-consuming and expensive procedures such as discovery. In the words of legal scholar Roni A. Elias, “The statutes accomplish the objective of protecting important public speech by making it easier to dismiss defamation and similar suits at an early stage.” (Thurgood Marshall Law Review, 2016).

States With and Without Anti-SLAPP Laws

These states have anti-SLAPP laws:

  • Arizona
  • Arkansas
  • California
  • Colorado
  • Delaware
  • D.C.
  • Florida
  • Georgia
  • Hawaii
  • Illinois
  • Indiana
  • Kansas
  • Louisiana
  • Maine
  • Maryland
  • Minnesota
  • Missouri
  • Nebraska
  • Nevada
  • New Mexico
  • New York
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • Tennessee
  • Texas
  • Utah
  • Vermont
  • Washington — sort of
  • Guam

These states do not have anti-SLAPP laws:

  • Alabama
  • Alaska
  • Connecticut
  • Idaho
  • Iowa
  • Kentucky
  • Michigan
  • Mississippi
  • Montana
  • New Hampshire
  • New Jersey
  • North Carolina
  • North Dakota
  • Ohio
  • South Carolina
  • South Dakota
  • Virginia
  • Washington (ruled unconstitutional by the state’s Supreme Court)
  • West Virginia
  • Wisconsin
  • Wyoming

For details of the laws, go to the Public Participation Project for a state-by-state analysis. Use this link: http://www.anti-slapp.org/your-states-free-speech-protection/

People have developed a model anti-SLAPP law, which you can read about. See Baker & Histetler LLP, “A Uniform Act Limiting Strategic Litigation AgainstPublic Participation: Getting It Passed,” Society of Professional Journalists, http://www.spj.org/antislapp.asp

SLAPP-Back

Try countering with a SLAPP-Back suit. While the SLAPP suit (the suit against you) is being litigated, or after it has been resolved, or both (depending on specific claims and state statutes), you can countersue. That is, you can sue the people who SLAPPed you — for legal fees, damage your reputation, harm to your business, interference with the exercise of your constitutional rights, or other violations.

Many SLAPP-back suits have been successful, not only in achieving damage awards for people who were SLAPPed, but also in making potential SLAPPers think twice before filing SLAPP suits against citizens who speak out. Here are a few encouraging examples for your scrapbook.

  • A real estate developer sued homeowners for $4 million for lobbying local officials to have a road converted into a private street, claiming interference with business. The court dismissed the suit, and awarded legal fees to the defendants (the homeowners).
  • Alan LaPointe, a California environmentalist (plus 490 unnamed others ) were sued for $42 million for a lawsuit they filed regarding funding for an incinerator. The SLAPP suit was dismissed, and $250,000 in damages was awarded as a result of a SLAPP-back suit.
  • Three California farmers took out a newspaper advertisement about their concerns about a planned irrigation canal. They were SLAPPed for libel. The SLAPP was dismissed, and $11.1 million dollars was awarded as the result of a SLAPP-back suit. (Upheld in a final appeal to the California Supreme Court.)
  • A woman published a letter in a local newspaper opposing the plans of an incinerator company. The company sued her for $1 million for defamation, then took further steps to smear her reputation and caused her to lose her job. In 1991, she was awarded $86.5 million, $80 million of it in punitive damages.

Suggestions

  1. If you are hit with a SLAPP, use your state’s anti-SLAPP law to get it dismissed and send a message to those trying to intimidate you. Consider counter-suing those who filed the SLAPP.
  2. If your state does not have an anti-SLAPP law, write one up (you can use one of the existing state laws as a model, or look to the model law), and start a campaign to have it made law in your state.

    In the meantime, you can still use legal protections to fight the SLAPP, with a lawyer’s assistance.

  3. If your state has a SLAPP law, look it over carefully and consider improving it, tightening it up. There is lots of legal writing on this topic.

SLAPPs, like all attempts at intimidation, are efforts to curb democracy when it raises its unpredictable head. The biggest fear of the power-brokers is that there actually be an open, in-depth democratic discussion of whatever issue or project or plan that’s under consideration. For your own sake and that of your community, SLAPPs must be countered. Fortunately, by now, there are decades of experience in doing exactly that.