SLAPP Suits (Strategic Lawsuits against Public Participation)

‘‘SLAPP’’ is an acronym for ‘‘strategic lawsuit against public participation,’’ a term coined by Professors George W. Pring and Penelope Canan to describe the growing phenomenon of filing lawsuits to discourage opponents from exercising their free speech and other civil rights. Plaintiffs in SLAPP actions sue in a variety of contexts, defamation, copyright, zoning applications, and land use variance requests. SLAPP suits arise frequently in the environmental arena, in response to opposition against hazardous waste disposal facilities, the loss of natural environmental features, and developments that raise concerns for nearby residents. The concept of SLAPP is ironic in that the party who files the suit seeks to use the law to chill the civil rights of others. In the typical SLAPP suit, an economically dominant party (the SLAPPer) files suit against an economic underdog (the SLAPPee) who has petitioned the government in opposition to the SLAPPer’s project. The SLAPPer has little concern about the ultimate outcome of the action. His purpose is to convince the SLAPPee that opposition is futile and personally disastrous. The First Amendment provides protection against SLAPP suits. A party seeking a dismissal of a suit on the basis that it is a SLAPP typically must establish that plaintiff sued him because he petitioned or planned to petition the government. The SLAPP retaliates against or creates disincentives against petitioning activity by the defendant protected by the First Amendment—read broadly to include protection for citizens expressing views to agencies, legislatures, and courts. For example, Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972), rejected a company’s counterclaim for interference with an advantageous relationship. In its dismissal, the federal court held that the plaintiff’s actions that the defendant claimed interfered with his business relationship constituted a petition to the government. The case thus recognized a common law foundation for the judicial right to dismiss SLAPP suits.

Some states condemn SLAPP suits by statute. At least twenty states, including California, Massachusetts, and New York, have passed anti- SLAPP legislation, establishing sanctions against parties who bring a cause of action for the purpose of squelching the rights of the parties sued. States with anti-SLAPP laws reject SLAPP suits on the basis that such suits intimidate or discourage speech about matters of public interest. The California statute is a good example of legislative protection. It protects acts ‘‘in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech . . . in connection with a public issue or an issue of public interest.’’ State anit-SLAPP statutes authorize courts to dismiss civil claims that infringe on the defendant’s constitutional right of petition. Because everyone has a right to petition by lawsuit (including those accused of SLAPPs), courts navigate difficult factual questions in evaluating dismissal claims on the basis that the suit violates the anti-SLAPP statute. The courts must protect citizens from meritless lawsuits while protecting the right to bring a suit for judicial resolution. Some anti-SLAPP statutes, such as that of New York, also expressly authorize costs and attorney’s fees when the suit lacks a substantial basis. New York Civil Rights Law } 70a (Consol. 2005) also allows compensatory and even punitive damages to the SLAPPee in specified circumstances. The anti-SLAPP provisions facilitate dismissal of retaliatory lawsuits by reducing the Burden of Proof for dismissal for malicious prosecution or abuse of process. In Kashian v. Harriman, 98 Cal. App.4th 892, 120 Cal. Rptr.2d 576 (2002), a California court invoked the state’s anti-SLAPP statute in dismissing a claim by a hospital developer against a lawyer who represented an advocacy organization opposing the developer’s plan.

In addition to statutory penalties, the lawyer who brings a SLAPP suit lacking a basis in fact may receive sanctions under Rule 11 of the Federal Rules of Civil Procedure and the Rules of Professional Conduct in some jurisdictions. The American Bar Association Model Rule of Professional Conduct 3.1, ‘‘Meritorious Claims and Contentions,’’ states: ‘‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.’’ Comment 1 to Model Rule 3.1 summarizes the sense of the rule: ‘‘The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.’’

IRMA S. RUSSELL

References and Further Reading

• Jackson, Mark, The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v. Sullivan, William & Mary Bill of Rights Journal 491 (2001): 9.
• Kuehn, Robert R., Shooting the Messenger: The Ethics of Attacks on Environmental Representation, Harvard Environmental Law Review 417 (2002): 26.
• McBrayer, Lauren, The Direct TV Cases: Applying Anti- SLAPP Laws to Copyright Protection Cease-and-Desist Letters, Berkley Technology Law Journal 603 (2005): 20.
• McBride, Edward W. Jr., The Empire State SLAPPs Back: New York’s Legislative Response to SLAPP Suits, Vermont Law Review 925 (1990): 17.
• Pring, George W., SLAPPs: Strategic Lawsuits Against Public Participation, Pace Environmental Law Review 3, 68(1990):7.
• Pring, George W., and Penelope Canan, Strategic Lawsuits Against Public Participation’’ (‘‘SLAPP’’): An Introduction for Bench, Bar and Bystanders, Bridgeport Law Review 937 (1993): 12.
• Tobias, Carl, Environmental Litigation and Rule 11, William & Mary Law Review 429 (1992): 33.
• Wilson, Paul D., Of Sexy Phone Calls and Well-Aimed Golf Balls: Anti-SLAPP Statutes in Recent Land-Use Damages Litigation, Urban Lawyer 375 (2004): 36.

Cases and Statutes Cited

• Kashian v. Harriman, 98 Cal. App.4th 892, 120 Cal. Rptr.2d 576 (2002)
• Kobrin v. Gastfrind, 821 N.E. 2d 60, 63 (Mass. 2005)
• Margolis v. Gosselin, 5 Mass. L. Rptr. 283 (May 22, 1996)
• Novak v. Dept. of Envtl. Prot., 6 Mass. L. Rptr. 273 (Feb. 24, 1997)
• Protect Our Mountain Environment, Inc. v. District Court in and for Jefferson County, 677 P. 2d 1361 (Colo. 1984)
• Sierra v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972)
• Webb v. Fury, 282 S.E. 2d 28 (1981)
• Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523 (N.D. Ill.1990)
• American Bar Association Model Rules of Professional Conduct 3.1 (2003)
• California Civil Procedure Code } 425.16 (Deering 2005)
• Federal Rule of Civil Procedure 11
• Massachusetts General Laws ch. 231, } 59H (2005)
• New York Civil Rights Law } 70a (Consol. 2005)