After losing a long, expensive, and contentious land-use application, it can be tempting to pull out the big guns, particularly if those guns are in the form of eager attorneys to whom you have already paid a fortune. But sometimes the big guns are better left holstered.
A developer in suburban Chicago may be learning this very lesson. After their proposal to build a high-density residential project in suburban Park Ridge was voted down by the Village Board, the developer filed a lawsuit challenging the decision as violating city ordinances, among other counts. But somewhat oddly it named among the defendants several village residents who had spoken out against the project. While there do not appear to be any counts in the complaint that would subject the residents to personal liability, it nevertheless raised the hackles of the community–and brought some negative publicity to the project.
What’s worse, by naming residents who spoke out against the project the developers may end up finding themselves on the wrong end of an anti-SLAPP motion, a procedural motion in Illinois courts that punishes plaintiffs who use litigation as a tactic to chill the First Amendment activities of their political opponents.
A SLAPP suit is a “strategic lawsuit against public participation.” In their definitive study of SLAPPs, George Pring and Penelope Canan define SLAPPs as lawsuits involving communications meant to influence a government decision, where that decision involves, substantively, an issue of public policy or public interest. SLAPPs are essentially a strategy of trying to silence political opponents through legal means. In the 1990s and early 2000s, SLAPPs were considered such a serious threat to the democratic process, particularly in local government fights, that states began passing “SLAPP Back” or “Anti-SLAPP” legislation that protected citizens from lawsuits brought by big baddies trying to target their First Amendment activities in a political context. Today at least nineteen states have some version of an “anti-SLAPP” or “SLAPP Back” statute.
Anti-SLAPP motions like that in Illinois can shift the burden to a plaintiff-developer to prove that the suit is not being brought as a way to intimidate citizens out of exercising their First Amendment rights. What’s more, the legislation procedurally freezes the litigation process, preventing the developer from extracting depositions or getting civil discovery. So no peeking under the hood either. And the coup de grace? Should the motion be granted–often a good likelihood, given the burden shifting–the plaintiff is now on the hook for the defendant’s attorneys’ fees.
So what to do when faced with vociferous opponents of your project, exercising their First Amendment rights of speech and petition, even where they’re using misleading arguments? Well, to paraphrase Justice Louis Brandeis, the remedy to bad speech is more speech, not no speech. Organize around your opposition, and build your own public support to compete with their message. If project opponents are knowingly making false claims meant to harm your reputation, there is a separate legal remedy for that–but even then, misinformation is better countered by better information than by censorship. And that may just keep you out of the papers.