Survival Guide for SLAPP Victims

http://www.casp.net/slapps/survival.html

What are SLAPPs?

Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.

Ultimately, most SLAPPs are not legally successful. Nevertheless, while most SLAPPs do not succeed in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect "chills" public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP defendants -- other people refrain from speaking out on issues of public concern because they fear being sued for what they say.

The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where both the cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.

Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:

* Writing a letter to the editor
* Circulating petitions
* Calling a public official
* Reporting police misconduct
* Erecting a sign or displaying a banner on their property
* Complaining to school officials about teacher misconduct or unsafe conditions in the school
* Speaking at a public meeting
* Reporting unlawful activities
* Testifying before Congress or state legislatures
* Speaking as an officer of an active public interest group
* Filing a public interest lawsuit

California has a statute that specifically protects people from SLAPPs. Code of Civil Procedure section 425.16, which took effect in 1993, allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.

The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes:

* Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

* Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or

* Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

* Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue.

Other states have similar protections against SLAPPs. For the text of statutes and court opinions from other states, see Other States: Statutes and Cases (you can also access these materials from our Home Page or the menu bar in main sections of our website).

For a comprehensive discussion of SLAPPs, see the book SLAPPs: Getting Sued for Speaking Out, by George Pring and Penelope Canan.


How Do You Know It's A SLAPP?

SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following:

Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.

Invasion of Privacy. This refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.

Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process."

Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.

Interference With Contract or Economic Advantage. This is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons.

Intentional Infliction of Emotional Distress. This is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.

Nuisance. This includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
Injunction. The lawsuit seeks a temporary restraining order or an injunction against First Amendment activity

This list is not exhaustive. Neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.

It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties' subjective motives - bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits - are irrelevant. The only critical issue is whether protected expressive activity triggered the suit, and is therefore at risk.


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