Columnist Tony Leighton in the Guelph, Ontario Mercury recently highlighted the dilemma that citizen groups face in Canada if a developer threatens to sue them for millions of dollars to recover costs from a project they may oppose.
Jeffrey Gould, general counsel for The Saint Consulting Group, points out that unlike Canada, the United States has taken aggressive steps to protect citizens against “Strategic Lawsuits Against Public Participation” or “SLAPP” lawsuits. At least half of the states in the U.S. have adopted anti-SLAPP legislation, and others have achieved the same result through common law case authority.
SLAPPs are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. Typically, SLAPP suits target citizens for testifying before their municipal boards and commissions about building permit and zoning change applications, reporting violations of environmental law, writing to government officials, and the like. The objective of SLAPP suits is to use litigation to intimidate opponents’ exercise of rights of petition and speech, as guaranteed under the First Amendment to the U.S. Constitution.
Anti-SLAPP statutes are usually enacted as a legislative reaction to a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. Legislatures intend the statutes to encourage full participation by persons and organizations and robust discussion of issues before legislative, judicial, and administrative bodies. And the courts have concluded that the typical mischief that the legislation is intended to remedy is lawsuits directed at individual citizens of modest means for speaking publicly against development projects. It applies to matters of both public and private concern, and encompasses petitions brought before governmental agencies.
The purpose of these statutes is to permit SLAPP lawsuits to be resolved quickly with minimum cost by establishing a procedural remedy for early dismissal. Most include provisions for filing a special motion to dismiss, which if successful allows the court to award attorneys’ fees to the defendant. As a threshold matter, a defendant may seek protection under an anti-SLAPP statute upon demonstrating that the plaintiff’s claims are based on the defendant’s exercise of its right to petition.
Many courts have also ruled that protection under anti-SLAPP legislation extends to persons other than those whose rights to petition the government are being exercised. For example, it has been held that an attorney who represents a citizens’ group is entitled to invoke anti-SLAPP protection when a lawsuit is filed against the attorney based solely upon the attorney’s petitioning activities in opposing a development project on behalf of clients. In addition, it has been held that even the petitioning activity of a direct competitor to a party seeking relief that is opposed through petitioning activity is expressly protected under anti-SLAPP statutes.
Even in the states that have not adopted anti-SLAPP legislation, there is U.S. Supreme Court case authority that provides similar protections. The Court developed the Noerr-Pennington Doctrine from its decisions in the case of Eastern R.R. President’s Conference versus Noerr Motor Freight, Inc. (1961) and the case of United Mine Workers versus Pennington (1965). The Noerr-Pennington Doctrine guarantees citizens their first amendment right to petition the government for redress without fear of anti-trust liability.
The First Amendment freedoms of petitioning and of association protect groups who for whatever reason want to contribute to a lawsuit openly or to stand apart from the public view while another party files a lawsuit. Under Noerr-Pennington, the First Amendment rights of petition and association trump any anticompetitive effects that might occur from asking the government for redress.
Jeffrey Gould is general counsel and vice president of The Saint Consulting Group