Strategic Lawsuits Against Public Participation in Government

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STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION IN GOVERNMENT

Citizen activism on public issues since the 1960s has been confronted by a new genre of civil litigation: lawsuits claiming injury from others' communications to government. A National Science Foundation–sponsored study at the University of Denver has found that citizens, nonprofit organizations, and businesses are being sued for exercising the basic first amendment right to "petition the government for a redress of grievances." Lawsuits, typically with multimillion-dollar claims, have been filed against citizens and groups for testifying against real estate developments at city zoning hearings; reporting public official and police misconduct; filing consumer or civil rights complaints; writing letters to the President opposing political appointments; reporting violations of environmental regulation; complaining to school boards about incompetent teachers; or testifying before Congress or state legislatures on pending bills.

Although the lawsuits make various claims—most typically defamation, business torts, process violations, and conspiracy—they have come to be collectively viewed by courts and commentators as "SLAPPs" for "strategic lawsuits against public participation" in government, an acronym that captures both their cause and their effect; namely, sanctioning political opponents' participation in government decisionmaking. SLAPPs are a classic example of "dispute transformation," a unilateral changing of the nature of the dispute, the forum, and the issues so that, for example, a public, political-forum, policy controversy over zoning is transformed into a private, judicial-forum, legalistic controversy over slander, to the perceived advantage of the lawsuit filer.

The University of Denver study found these attempts to "privatize" public debate typically arise when a party's civically or politically motivated communications to a government official, body, or the electorate threaten the private economic interests of another party, thus provoking a tension between the twin cultural values of democracy and capitalism. While the overwhelming majority of SLAPPs are eventually dismissed in court, the study found that they nevertheless have serious emotional, financial, and political consequences and have a chilling effect on targets' and other observers' willingness to participate politically.

Because the American legal tradition encourages public participation as a cornerstone of representative democracy and recognizes, as new york times v. sullivan (1964) put it "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," SLAPPs have met with strong condemnation. "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined," one judge has inveighed, while another likened these suits to "the auto da fe " threatening "the most protected and encouraged form of expression known in this country."

The Supreme Court, state courts, legislatures, attorneys general, and government agencies have taken a dim view of this litigation tactic, favoring early dismissal. The Court's jurisprudence is muddled at the confluence of two different lines of authority, both creating a "qualified immunity" for government petitioning. On the one hand, in defamation-based SLAPPs, such as McDonald v. Smith (1985), the Court has applied the New York Times v. Sullivanlibel doctrine requiring dismissal unless "actual malice" (knowledge of falsity or reckless disregard of the truth) is shown. On the other hand, in SLAPPs alleging antitrust or business torts, such as City of Columbia v. Omni Outdoor Advertising, Inc. (1991), it has applied the more protective Noerr–Pennington doctrine requiring dismissal unless it is shown that the petitioning was "not genuinely aimed at procuring favorable government action at all," regardless of the defendant's intent or purpose.

More than a dozen states, including New York, California, Massachusetts, Minnesota, and Georgia, have adopted "anti-SLAPP laws," generally based on the qualified immunity approach of one or the other of the two Supreme Court lines of authority. In the absence of legislation, a few state courts have gone further and applied state law "absolute immunity" doctrines to protect SLAPP defendants, but the weight of court opinions favors the qualified immunity approaches.

In a number of cases, countersuits have been filed against SLAPP filers and their attorneys, once the SLAPP is dismissed. Typically based on malicious prosecution, abuse of process, and civil rights claims, these "SLAPP-backs," as they have come to be called, have resulted in jury awards in the multimillions of dollars.

George W. Pring

Penelope Canan
(2000)

(see also: Freedom of Petition.)