SLAPPs In Depth

SLAPPs: Effects, Defenses, Preventions

This paper on SLAPPs is written for non-lawyers by a non-lawyer. It is an attempt to familiarize the interested layperson with the nature of SLAPPs, defenses against them, and ways to prevent them. Special attention is given to provisions that may be effective in state legislation designed to protect the rights of citizens who participate in a public debate.

1. SLAPPs: Definition, Characteristics, Background

SLAPP is an acronym for Strategic Lawsuit Against Public Participation. The term was coined in the late 1980s by Professors Penelope Canan and George W. Pring of the University of Denver, who have done extensive research on SLAPPs.

Though widespread media coverage of SLAPPs is less than a decade old, SLAPP suits are at least twice as old as that. An early SLAPP, Sierra Club v. Butz, was filed in 1972.

In this case, Sierra Club filed a lawsuit to prevent logging by a lumber company. The company then sued Sierra Club and four individuals, claiming interference with its business (a business tort) and asking for $1 million in punitive damages. The district court dismissed the SLAPP suit on the basis of what is known as the Noerr-Pennington doctrine, discussed below.

In the two decades since Sierra Club v. Butz, many hundreds, perhaps thousands, of SLAPP suits have been filed and wound their way through the legal system. Their paper trails, and extensive research on the SLAPP phenomenon by Canan and Pring and others, provide an annotated guide to the current state of the SLAPP in the U.S. today.

In a typical SLAPP, a citizen asks the government to stop a developer, and then the developer sues the citizen to stop the citizen (and others) from speaking out.

SLAPPs involve these five elements.

1. There is a claim for monetary damages and/or an injunction against whatever it was that the citizens were doing that bothered the plaintiff (the party filing the suit). The monetary damage claims are usually way out of proportion to the defendant’s ability to pay.
2. The lawsuit is filed against non-governmental individuals or groups.
3. The defendants (the ones being sued) are targeted because of their communication to a government body, a public official, or the electorate. (This communication can take the form of a lawsuit.)
4. The communication is about a matter of public interest or concern.
5. The suit is frivolous and without merit (extremely unlikely to be successful in court), and contains an ulterior motive (like preventing or punishing legally permissible speech.)

Since there is no way to know exactly how many SLAPPs have been filed and what all outcomes were, exact figures on SLAPPs are elusive. But several researchers have attempted to make sound generalizations about them, and a picture is emerging.

Approximately 80-90% of all SLAPPs are resolved favorably to the defendant(s). (Favorable meaning the suit was dismissed, dropped, and/or resulted in rulings otherwise favorable to the defendant — like monetary damages, awards of legal fees, etc.)

The most common claim made in a SLAPP suit is defamation (slander and/or libel). (In general terms, slander is for speech and libel is for writing.) Also common are claims of business torts, the so-called interference with business (for example, interference with contract or restraint of trade.)

(In the Sierra Club v. Butz case cited above, Sierra Club was suing the government, not the lumber company. The company, however, made the claim that Sierra Club’s action was, in effect, a form of business tort.)

Other claims made in SLAPP suits include abuse of process, malicious prosecution, conspiracy, constitutional or civil rights violations, and nuisance. Discussion in this paper will be for the most part limited to the two most common types of claims: defamation and interference with business. In addition, since the overwhelming majority of SLAPPs have been civil, as opposed to criminal, suits, this paper will not discuss the much less frequent criminal SLAPP.

Pring has estimated that over 100 SLAPPs are filed annually, and that the average time it takes to resolve a SLAPP is three years. (The research on which this is based, however, is several years old. Recent years may have seen a reduction in both of these figures.)

One especially disturbing sideline to the SLAPP phenomenon has been the emergence of SLAPP suits filed by government entities. These brief examples will provide a glimpse into this phenomenon.

• Warren and Washington counties (New York) sued citizens for their actions in opposing an incinerator near Hudson Falls, New York. The counties asked for $1.5 million in damages stemming from extra costs in issuing bonds for the incinerator. The (Albany) U.S. District Court found that county officials had violated the First Amendment rights of the citizens and awarded $62,000 in attorneys fees. Existing law prevented consideration of punitive damages.
• A California sanitation district sued an environmentalist for $42 million for his actions in opposing an incinerator. After the SLAPP was dismissed, a SLAPP-Back suit resulted in an award of $250,000 in damages.
• HUD and other government social agencies have taken to filing lawsuits against citizens who oppose such things as low-income housing developments, homeless shelters, facilities for the disabled, and the like. The grounds for such suits often invoke the 1988 Fair Housing Act and allege racism as a civil rights violation. Without examining each case it is difficult to determine whether what is happening is a noble defense of civil rights or a heavy-handed effort to stifle public participation and force perhaps poorly designed projects onto protesting citizens. It does seem that even if civil rights considerations are relevant, some of these actions constitute SLAPPs.

The idea of a government SLAPP is especially chilling, and should be considered in any effort to pass legislation designed to protect public participation, even when it is explicitly directed against government agencies.

2. Why SLAPPs Are Filed and How They Are Used

Like someone once said about the Olympics, the point of a SLAPP is not to win but to participate. That means that the plaintiff’s interest (the plaintiff is the party filing the SLAPP) lies not in resolving the suit but in prolonging it.

Time-consuming and expensive litigation during the course of a SLAPP suit can cause defendants personal and financial distress and deplete their resources. It may deter the defendants from continuing to speak out on the issue that occasioned their original actions, and on other issues.

In addition, others who hear about the suit may hesitate to participate in public debates for fear of being SLAPPed as well.

Understood in this context, SLAPPs are a form of harassment, an attempt to intimidate and a threat to the free speech of anyone who speaks out in a public debate (not just the defendants in a given case). A plaintiff may also use a SLAPP suit for the express purpose of increasing the pressure on a defendant as a negotiating tool in a particular conflict.

SLAPP suits succeed because they take time, cost money, and instill fear, and not because the plaintiffs expect to win their cases. Efforts to respond to SLAPPs must address this situation.

3. How to Address SLAPPs — Goals and Considerations

In SLAPP suits, “the system works,” and that is both the beauty of our judicial system, and the problem. The beauty in that such a high percentage of SLAPPs are resolved favorably for the defendant; the problem in that the process itself is so long and costly that the purpose of the SLAPP (that is, harassment) is achieved even as the suit itself fails.

In addressing the content of a SLAPP, courts have sought to achieve a balance between protecting the defendant’s right to free speech, and protecting the plaintiff’s right to not be defamed and not have business interfered with.

The balance can be achieved “at either end,” so to speak: by limiting the liability recovery allowed individuals or businesses in certain situations, or, by increasing the protection granted to certain kinds of speech. An example of the first is the loss of protection for persons who have become “public figures.” (See below re: the application of the New York Times standard to defamation cases.) The latter approach is exemplified in the expanded protection granted citizens petitioning the government (See Noerr-Pennington, below.)

In addressing the legal process that a defense against a SLAPP entails, that is, the harassment potential that even a successful defense involves, three aspects should be considered.

1. The ability of defendants to get SLAPPs dismissed or resolved fast, should be enhanced.
2. The desirability for plaintiffs of filing SLAPPs should be reduced.
3. The effect of SLAPPs on third parties (others considering speaking out) should be minimized.

In the rest of this paper, two aspects of the SLAPP phenomenon will be addressed: Defenses against a SLAPP that has been filed, and Protections against SLAPPs.

Under Defenses, two standard defenses will be discussed (the so-called New York Times standard and the Noerr-Pennington doctrine, below).

Under Protections, ways to circumvent the need for lengthy and costly legal proceedings (both before and during a trial) are considered.

The three kinds of Protections considered here are Lawyer Sanctions, Pleading Hurdles, and Legislation.

Finally, the SLAPP-Back suit will be discussed.

4. Defenses Against SLAPPs

The New York Times Standard and Defamation. (NYT v. Sullivan, [376 U.S. 254 (1964)], and refinements in succeeding cases.)

Summary. The NYT standard limits the state’s ability to impose liability for defamation. The Supreme Court held that public officials can only be defamed in their official capacity if the offending statement was made with “actual malice” — knowledge that it was false, or reckless disregard for the truth. The Court also raised the standard for establishing “actual malice” to a more difficult level (to “convincing clarity” from the laxer “preponderance of the evidence.”)

There are, then, three factors involved in applying the NYT standard: (1) the speech must be a matter of public concern, (2) the party allegedly defamed must be a public figure (as opposed to a private figure), and (3) the defendant cannot be knowingly or recklessly not telling the truth.

A brief note on “opinion” as a defamation defense. Once regarded as an absolute defense against defamation claims, this is no longer the case (See Supreme Court’s 1990 Milkovich v. Lorain Journal Co.). However, unprovable facts (“the world is coming to an end”) are protected, as are hyperbole, parody, and similar tropes.

Problems with the NYT Standard From a SLAPP Perspective. Remembering that it is the process itself and not the outcome that is so harmful to the SLAPP defendants and the public debate — the NYT standard does not always address this issue. This is because a defense based on the NYT standard can still require either a long trial or extensive pre-trial proceedings or both.

A judge may make a summary judgment to dismiss the case before a trial, but there is still room for long pre-trial proceedings before a summary judgment. Some of the reasons for this are as follows:

1. the determination of whether or not a party is a public figure can be argued,
2. “actual malice” can be difficult for a defendant to disprove without a trial, and
3. at the summary judgment stage, attempts on the part of the plaintiff to prove “actual malice” involve determining the state of mind of the defendant, a determination that often requires extensive discovery proceedings.

In short, the NYT standard as a defense against defamation has been criticized because high litigation costs often arise even before a summary judgment is rendered. The harassment value of a SLAPP thus remains intact, even if the SLAPP is dismissed at long last.

The Noerr-Pennington Doctrine as a Defense Against Defamation and/or Business Tort SLAPPs. (UMV v. Pennington, 381 U.S. 657 (1965); Eastern R. R. Presidents’ Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)).

Summary. The Noerr-Pennington (N-P) Doctrine arose out of antitrust law but is grounded in the First Amendment rights granted in the U.S. Constitution. Its history and origins are not germane to this discussion but may be explored in the case law referenced above.

In a nutshell, N-P has been construed as establishing an absolute, constitutional privilege against tort claims (wrongs like defamation and interference with business) for citizens who are genuinely petitioning the government. This right to petition (if the petition is genuine) exists regardless of the motives or intent of the petitioner.

The major exception to this First Amendment defense is a sham petition. If a campaign supposedly directed to influencing government policy or action is a sham to cover an attempt to interfere with the business of a competitor, then it is not covered by N-P.

Crucial considerations in the utility of applying N-P as a defense, and perhaps more importantly, as a protection against SLAPPs, obviously include the following questions.

1. What counts as petitioning the government?
2. What exactly is a sham petition?
3. To what extent does the determination of (1) and (2) involve the defendant in long and costly legal proceedings?

What is petitioning?

Communication with the government that (a) is genuine (not sham), (b) addresses the government and not a private entity, and (c) direct, is considered petitioning under the N-P doctrine.

Attempts to seek redress from a private entity are specifically not covered under N-P. For instance, efforts to induce a corporation to change its policies are not covered under N-P.

In Webb v. Fury (282 S.E. 2d 28 (W. Va.) 1981)), the West Virginia Supreme Court of Appeals extended the scope of petitioning beyond judicial and legislative petitioning, to all activity related to that petitioning, specifically, publicity campaigns. (This broad interpretation has not been affirmed in other jurisdictions, however.)

In 1982, the Supreme Court extended the scope of petitioning to include indirect petitioning that took the form of a boycott. ( NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)). The court held that “nonviolent economic boycotts were immune from common law tort claims for malicious interference with business when the main purpose of the boycott was to influence government policy.”

HOWEVER, in 1988 the Rehnquist court (486 U.S. 492 (1988) in Allied Tube & Conduit Corp. v. Indian Head, Inc. ) limited N-P to exclude petitioning that is unrelated or only indirectly related to any immediate attempt to influence the government.

What is sham petitioning?

A petition is a sham if persons use the process as opposed to the outcome of the process as an anticompetitive weapon.

Weakness of N-P Doctrine as applied to SLAPPs

Merely pleading a sham petition is easy, even if proving it is difficult. This opens the possibility for extensive, lengthy, and costly pre-trial proceedings.

Some people think that before the N-P Doctrine is invoked, a statutory invitation to engage in petitioning (like for a public hearing or comment) or a tradition of petitioning on the issue should be required.

Advantages of the N-P Defense in SLAPP cases.

In addition to the fact that the N-P Doctrine (unlike the NYT standard, discussed above), can be applied to both business torts and defamation claims, there are other advantages to the N-P defense in SLAPP cases.

Once the propriety of the petitioning is established, protection is extensive and relatively easy to determine (in comparison to NYT standard defenses).

N-P requires the plaintiff to show either indirect petitioning or sham in order to have justification for examining the motives of the defendant (and thereby extending the litigation process). The plaintiff must plead a sham exception with specificity.< Sham petitioning is easier for a defendant to disprove than is "actual malice" (relevant in NYT standard defenses). Sham petitioning can often be determined as a matter of law, whereas malice determinations most often need to look into the facts of a case. The procedural consequences for a SLAPP defendant are thus less ponderous.

5. Preventions Against SLAPPs and SLAPP effects.

Possible methods of discouraging the filing of SLAPPs and/or encouraging their early dismissal can be grouped under three somewhat overlapping topics: Lawyer Sanctions, Pleading Hurdles, and Legislation.

Lawyer Sanctions

Under Rule 11 of the Federal Rules of Civil Procedure, lawyers have an obligation to make a reasonable inquiry before filing a lawsuit (including SLAPPs). That reasonable inquiry should determine that the contemplated lawsuit is 1) well-grounded in fact, 2) legally tenable, and 3) not filed for an improper purpose like delays or the cost of litigation to the defendant.

The trial judge has discretion to apply sanctions or award attorney’s fees if he or she finds that the lawyer has been acting in bad faith.

Some state statutes and behavior codes adopted by lawyers’ associations have similar provisions.

Despite Rule 11 and analogous state statutes, protection against SLAPPs is iffy because 1) the application of the rule and awarding of fees is inconsistent, and 2) a nasty plaintiff can consider the intimidation gained to be well worth the risk of sanction and/or monetary awards.

Pleading Hurdles

Pleading hurdles are a means by which the SLAPP plaintiff can be required to prove a lot at the outset in order to demonstrate that the suit is not frivolous or without merit. This offers the possibility that more SLAPPs can be dismissed outright before the defendants have to go through the extensive and expensive legal procedures that are the hallmark of a successful SLAPP.

In 1984, in a landmark case, the Colorado Supreme Court proposed a pleading hurdle for potential SLAPPs. ( Protect Our Mountain Environment, Inc., v. District Court, 677 P. 2d 1361 (Colo. 1984)). Referred to as P.O.M.E.

In order to pass over this pleading hurdle, the plaintiff must show that the defendant’s acts 1) lack a legal or factual basis, 2) are primarily for the purpose of harassment or other improper purpose, and 3) are likely to harm the legal interest of the plaintiff.

What this amounts to, is that in Colorado, SLAPPing plaintiffs must answer a motion to dismiss with a showing of sham petitioning.

The defendant is not completely protected against extended legal proceedings, however. The P.O.M.E. defendants had filed a lawsuit, so the plaintiffs could make use of extensive pre-trial discovery to determine if the lawsuit was baseless, and then use discovery again to determine the motives of the defendant(s).

Pleading hurdles can also be incorporated into legislation.

Legislation

New York State passed a SLAPP law (New York, 76-a, 1992) effective January 1, 1993. It 1) provides expedited procedures for motions to dismiss the SLAPP, 2) considers the plaintiff to be a public figure and therefore requires the “actual malice” standard, and 3) provides relief if (a) the suit is without “substantial” (as opposed to just “reasonable”) basis, and (b) the purpose is maliciously inhibiting the defendant’s rights.

A California bill (1990) (versions of a SLAPP bill were passed in the California state legislature three times but vetoed three times by two governors) included provisions for a pleadings hurdle and an award of attorneys fees to defendants. It provided a special motion to strike at the beginning of a SLAPP filing, and also required the plaintiff to meet a higher burden of proof than otherwise (i.e., “substantial probability that the plaintiff will prevail on the claim.”)

This 1990 bill would have protected citizens from suits “arising from any act of the person in furtherance of his or her First Amendment right of petition, or free speech in connection with a public issue,” unless there is “substantial probability” that the plaintiff would prevail.

SLAPP legislation has been introduced in a handful of state legislatures, and has become law in some (like Washington). A more thorough review of proposed SLAPP legislation would be helpful in designing any new proposed legislation designed to protect citizens against SLAPPs.

6. SLAPP-Back Suits

Suing the people who SLAPPed you — an action known as a SLAPP-Back suit — is encouraged by civil liberties organizations.

Claims frequently included in SLAPP-Back suits include those for awards of legal fees, damage to one’s reputation, harm to one’s business, interference with the exercise of constitutional rights, malicious prosecution, and others.

SLAPP-Back suits are a diverse lot, but it seems that as is the case with SLAPPs, citizen activists “know one when they see one.” This diversity in SLAPP-Back suits is due at least in part to the following factors.

1. Most obviously, the kinds of damage done by the original SLAPP vary.
2. In cases where a judge or jury has already sanctioned the lawyer and/or parties bringing the original SLAPP, awarded attorney’s fees, or taken similar actions, a subsequent SLAPP-Back suit will be adjusted accordingly.
3. The timing of SLAPP-Back suits varies. A SLAPP-Back suit may be included, in effect, as a counterclaim in the original SLAPP proceedings. Or, depending on state law and the particulars of both the original SLAPP and the SLAPP-Back claim, the filing of a SLAPP-Back suit may have to wait until the original SLAPP suit is resolved. An example will clarify this matter of timing.

Malicious prosecution claims may be a part of a SLAPP-Back action. In California, malicious prosecution claims cannot be filed until the original suit is resolved. This circumstance leads, in turn, to some special considerations relevant to proposed legislation designed to protect citizens against SLAPPs.

Joseph Brecher has proposed that in the case of SLAPPs, malicious prosecution actions be allowed simultaneously with the original SLAPP. It has been pointed out, however, that this arrangement could boomerang and work against the interest of SLAPP defendants, as the following scenario suggests.

If the original citizen action that was the subject of a SLAPP suit was itself a lawsuit (as was the case in Sierra Club v. Butz, for example), then those plaintiffs (the citizens) could themselves be subject to a malicious prosecution lawsuit simultaneous with their original lawsuit. The malicious prosecution lawsuit would then itself function as a SLAPP.

This example illustrates the pitfalls of hastily written (even if well-intentioned) legislation designed ostensibly to protect citizens against the effects of SLAPPs.

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 about filing SLAPP suits against citizens who speak out.

7. Proposed Legislation to Protect Against SLAPPs

These are suggestions about provisions to be included in a state SLAPP law designed to protect citizens’ rights to speak out on matters of public concern.

1. Rule 11 of the Federal Rules of Procedure should be incorporated by reference. Judges should be directed to apply it early, consistently, and strictly.
2. Pleading hurdles (such as requiring “actual malice” to be shown, with a high burden of proof on the plaintiff) should be combined with provisions for an early motion to strike to encourage early resolution if the judge determines that a lawsuit is a SLAPP.
3. A clear definition of SLAPPs (along the lines of that offered in this paper) should be included in the statute.
4. The plaintiff’s original lawsuit should be specific enough to allow the judge to evaluate it under the SLAPP statute, without requiring extensive discovery proceedings or other pre-trial inquiries that could be construed as harassment of defendants.
5. The Noerr-Pennington Doctrine, broadly construed, should be the basis for a background concept of what citizens’ right to petition entails.
6. The judge should have the authority to, at the time of a motion to strike or at any later time during the course of the suit, order monetary or other sanctions, actual and/or punitive, against both the attorney(s) filing the SLAPP and the clients/parties on whose behalf he/she acts.
7. Developers, corporation officers, government officials, and other parties who file SLAPPs should be considered to be “public figures” for the purpose of this law.
8. Government entities of any and all kinds should be subject to the same claims under this act as are other parties. This should specifically include sanctions for filing SLAPPs, the awarding of attorney’s fees, and subjection to actual and punitive damages.
9. The definition of “petitioning the government” should be broadly construed to include all levels, aspects, departments and subdivisions of government and elected and appointed officials; all forms of communication including but not limited to letters, speeches, public declarations, advertisements, newsletters, letters to the editor, lawsuits, boycotts, and demonstrations; and in contexts requesting passing, repealing, amending, or enforcing any law, regulation, or official or unofficial government policy, or proposed government policy.

   Specifically, at least some forms of indirect petitioning should be recognized and included.

10. A communication should be covered by this act and covered by the Noerr-Pennington doctrine, and considered to be “petitioning the government,” even if that communication is not formally considered to be invited or part of a past tradition of petitioning the government.
11. A division of the state attorney general’s office, or other special division funded by taxpayer funds, should be established and should thereafter be directed to act in total and complete independence of the rest of the government. This special office should assist citizens who believe they have been SLAPPed and take steps to insure the prompt and thorough enforcement of this statute.
12. All provisions of the act should be construed liberally and broadly in favor of protection of citizens’ First Amendment rights in a public debate.
13. No part of this act should be construed to limit the application of other doctrines, standards, or laws in the protection of a citizen’s right to participate freely in a public debate.

References

Brecher, Joseph S. “The Public Interest and Intimidation Suits: A New Approach.” 28 Santa Clara Law Rev. 105 (1988)

Brooks, Les Mains Sales: The Ethical and Political Implications of SLAPP Suits, 7 Pace Envtl Law Rev. 61 (1989) – suggests that the ethics of environmental lawyers are not pristine

Canan, Penelope. “The SLAPP from a Sociological Perspective.” 7 Pace Envtl. Law Rev. 23 (1989)

Canan, Penelope and George W. Pring, “Strategic Lawsuits Against Political Participation.” 35 Social Problems, 1988.

MacDonald, Heather. “HUD Continues Its Assault on Free Speech.” Wall St. J. 9-14-94. [“Rule of Law” column.]

Merriam, Dwight H. and Jeffrey A. Benson. “Identifying and Beating A SLAPP” Vol. III, 1993, Duke Environmental Law & Policy Forum.

“U.S. could sue neighbors fighting homeless shelter.” New York Times, 7-31-94.

Waldman, Thomas A. “SLAPP Suits: Weaknesses in First Amendment Law and in the Courts’ Responses to Frivolous Litigation.” UCLA Law Review, vol. 39 no. 4 (1992), pp. 979-1053.

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This summary of SLAPPs was prepared in 1995 by Jane Anne Morris, who is not a lawyer.