The Saint ReportNIMBY

Many states are slapping back against Strategic Lawsuits Against Public Participation. 

By Saint Consulting Staff

Courts have maintained and expanded the constitutional right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet individuals and community groups are sued for exercising these constitutional rights through “Strategic Lawsuits Against Public Participation” (SLAPP), which seek to intimidate citizens into silence by “slapping” them with expensive litigation.

Generally, a SLAPP is a civil complaint or counterclaim filed against individuals or organizations, arising from 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, in order to frighten or intimidate citizens who lack the resources to defend against such litigation.

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 that 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, telephoning 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, and filing a public interest lawsuit.

To protect against SLAPP lawsuits, the legislatures in many states have adopted anti-SLAPP statutory laws that provide expedited mechanisms for dismissing such lawsuits and recovering the legal fees associated with the effort to dismiss. The intent of the legislatures in adopting such statutes is to dissuade people from filing SLAPP suits in the first place, by fast-tracking their dismissal and creating the prospect of an award to the defendants of their legal fees incurred in defending against such suits. Indeed, in many states payment by the plaintiffs of legal fees incurred by the defendants is required if the defendants prevail in dismissing the SLAPP suit.

At present, there are twenty-eight states with anti-SLAPP statutes in place, and ten states with legislative bills pending to create anti-SLAPP statutes. In addition, there are two states where the equivalent of anti-SLAPP protection has been created by the judiciary in common law case authority. Clearly, the trend across the nation is to continue to advance anti-SLAPP protection and penalties for violation of such laws.

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