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A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

The plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.

Contents

History

The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance."[1] It has since been defined more broadly to include suits about speech on any public issue.[2]

The original concept is closely related to freedom of speech and the right to petition, entrenched in the First Amendment to the United States Constitution.

According to New York Supreme Court Judge J. Nicholas Colabella, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." A number of jurisdictions have made such suits illegal, provided that the appropriate standards of journalistic responsibility have been met by the critic.

Jurisdictional variations

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Canada

One of the first cases in Canada to deal with a SLAPP was Fraser v. Saanich (see [1999] B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities.

The first case to discuss and apply the Protection of Public Participation Act (PPPA) was Home Equity Development v. Crow, (see [2002] B.C.J. No. 1805 (B.C. S.C.)) (QL). The defendants' application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. Many felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project.

In Ontario, the decision in Daishowa v. Friends of the Lubicon (see [1996] O.J. No. 3855 Ont. Ct. Gen. Div.)) (QL) was also instructive on SLAPPs. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.

Some political libel and forum shopping incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.

Following the decision in Fraser v. Saanich, the Protection of Public Participation Act went into effect in British Columbia in April, 2001. It was repealed in August, 2001.

Québec's Justice Minister, Jacques Dupuis, has proposed an anti-SLAPP bill on June 13, 2008.[3]. The bill was adopted by the National Assembly of Quebec on June 3, 2009. As of now, Quebec's amended Code of Civil Procedure is the only anti-SLAPP mechanism in force in Canada.

Sweden

Under Swedish law a SLAPP is a direct attack against Swedish constitutional law of Freedom of the Press.[citation needed]

United States

The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.

If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.

California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse[4] of the anti-SLAPP statute (CCP § 425.16). Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct.[5] Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.

At least 26 other states and one territory have also enacted statutory protections against SLAPPs. These are Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack protections.

There is no federal anti-SLAPP law; the closest available remedy is the Noerr-Pennington doctrine in federal antitrust law. The extent to which state laws apply in federal courts is unclear, and the Circuit courts have reached different conclusions. The United States Court of Appeals for the Ninth Circuit has allowed California litigants to use their state's special motion in federal district courts located in California, in cases where the court is hearing at least one California state law claim through the doctrine of supplemental jurisdiction. [1] However, the United States Court of Appeals for the First Circuit has held that the Massachusetts anti-SLAPP law, as a mere matter of procedure, does not apply in federal courts.[6]

The lack of uniform protection against SLAPPs has probably encouraged forum shopping, and the uncertainty about one's level of protection has likely magnified the chill of SLAPPs.

In December 2009, Rep. Steve Cohen introduced the Citizen Participation Act, H.R. 4364, in the U.S. House. This marks the first time the Congress has considered federal anti-SLAPP legislation (though the Congress is currently considering the closely related issue of libel tourism.) Like many state anti-SLAPP laws, H.R. 4364 would allow the defendant of a SLAPP to have the suit quickly dismissed and to recover fees and costs.

Notable SLAPPs

Europe

United States

  • Barbra Streisand, as plaintiff, lost an anti-SLAPP motion after she sued an aerial photographer involved in the California Coastal Records Project. Streisand v. Adelman et al., in California Superior Court; Case SC077257 [7][8] See Streisand effect
  • Nationally syndicated talk radio host Tom Martino prevailed in an anti-SLAPP motion after he was sued for libel by a watercraft retailer. The case received national attention for its suggestion that no one reasonably expects objective facts from a typical talk show host.[9][10] Gardner v. Martino
  • Kim Shewalter and other neighborhood activists, as defendants, won an anti-SLAPP motion against apartment building owners because of the defendants' protest activities. Coltrain v. Shewalter
  • Barry King and another Internet poster, as defendants, won an anti-SLAPP motion against corporate plaintiffs based on critical posts on an Internet financial message board. Global Telemedia v. Does
  • Kathi Mills won an anti-SLAPP motion against the Atlanta Humane Society, Atlanta Humane Society v. Mills, in Gwinnett County (Georgia) Superior Court; case 01-A-13269-1 [11]
  • Karen Winner, the author of "Divorced From Justice," published in 1996 by ReganBooks/Harper Collins, is recognized as "[the] catalyst for the changes that we adopted," said Leo Milonas, a retired justice with the Appellate Division of the New York state courts who chaired a special commission that recommended the changes adopted by Chief Judge Judith Kaye.[12] But in 1999, Winner, along with a psychologist/whistleblower, and several citizens were SLAPPed for criticizing the guardian ad litem system and a former judge in South Carolina. Winner's report, "Findings on Judicial Practices & Court-appointed Personnel In The Family Courts In Dorchester, Charleston & Berkeley Counties, South Carolina" and citizen demonstrations led to the very first laws in South Carolina to establish minimum standards and licensing requirements for guardians ad litem — who represent the interests of children in court cases.[13] The retaliatory SLAPPs have been dragging on for nearly 10 years, with judgments totaling more than $11 million against the co-defendants collectively. Reflecting the retaliatory nature of these suits, at least one of the co-defendants is still waiting to find out from the judges, which particular statements if any he made were actually false.[14]
  • From 1981 to 1986, Pacific Legal Foundation and San Luis Obispo filed a suit attempting to obtain the mailing list of the Abalone Alliance to get the group to pay for the police costs of the largest anti-nuclear civil-disobedience act in U.S. history at the Diablo Canyon Power Plant. Pacific Legal Foundation lost at every court level and withdrew the suit the day before it was due to be heard by the U.S. Supreme Court. San Luis Obispo County v. Abalone Alliance
  • In March 2009, MagicJack (company who promotes a USB VOIP device) filed a defamation suit against Boing Boing for exposing their unfair and deceptive business tactics regarding their EULA, visitor counter, and 30 day trial period. This was dismissed as a SLAPP by a California judge in late 2009. In the resulting ruling, MagicJack was made responsible for most of Boing Boing's legal cost. MagicJack Legal Documents

See also

Case studies

Notes

  1. ^ George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out, (1996), 8-9.
  2. ^ See, e.g., Cal. Code of Civil Procedure § 425.16 (e) (3) and (e) (4).
  3. ^ http://www.assnat.qc.ca/fra/38Legislature1/Projets-loi/Publics/08-f099.htm
  4. ^ See Cal. Code of Civil Procedure § 425.17(a): "participation in matters of public significance ... should not be chilled through abuse of the judicial process or Section 425.16."
  5. ^ See Cal. Code of Civil Procedure § 425.17(b) [public interest litigation] and (c) [commercial speech].
  6. ^ Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003). Holding that the Massachusetts anti-SLAPP statute is a “mere matter of procedure” and therefore not applicable in federal court.
  7. ^ Streisand Sues to Suppress Free Speech Protection
  8. ^ Streisand’s Lawsuit to Silence Coastal Website Dismissed
  9. ^ What Do You Expect? It's Talk Radio, Court Says
  10. ^ Panel Concludes Reasonable Listeners Would Consider Comments Opinion
  11. ^ Atlanta Humane Society settles lawsuit
  12. ^ Guy Ashley, Marin Independent Journal story, "The Spark Behind The Firestorm" reprinted at http://www.geocities.com/promanowsky/firestorm.html
  13. ^ William J. Cook, Final Reply Brief of Appellant/Respondent Ernie Weaver in the Charleston County case, 2001-CP-10-2967.
  14. ^ Final Reply Brief of Appellant/Respondent Ernie Weaver in the Charleston County case, 2001-CP-10-2967.

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