Multinational Monitor

MAY 1998
VOL 19 No. 5


The Corporate Right to Cover Up: The Environmental Audit Privilege and the Public Interest
by Sanford Lewis

Veggie Libel: Agribusiness Seeks to Stifle Speech
by Ronald K.L. Collins

First Amendment Follies: Expanding Corporate Speech Rights
by Robert Weissman

Canadians Ungagged: A Victory for Free Speech in Daishowa v. Friends of the Lubicon
by Virginia Rose Smith


SLAPPing Back for Democracy
an interview with George Pring


Behind the Lines

Corporations and Free Speech

The Front
Rejecting the IMF - Milking the Media

The Lawrence Summers Memorial Award

Money & Politics
Corporate Tax Magic

Their Masters' Voice
The Small World of Lobbyist Ann Wexler

Names In the News

Book Notes


SLAPPing Back for Democracy

An Interview with George Pring

George Pring is professor of law at the University of Denver College of Law. He is co-author, with Penelope Canan, a University of Denver professor of sociology, of SLAPPs: Getting Sued for Speaking Out. For 13 years, Pring and Canan have co-directed the SLAPPs Project, studying SLAPP suits around the United States. Pring and Canan coined the term "SLAPPs," which stands for Strategic Lawsuits Against Public Participation in government.

Multinational Monitor: What is a SLAPP suit?

George Pring: SLAPPs are a troubling category of lawsuit that started showing up in the 1970s. The filer of the lawsuit, the SLAPPer, sues a person or group or business because they communicated their views to government officials and tried to influence government action. SLAPP suits involve communications to government.

That is the real reason we are concerned about these lawsuits without taking sides one way or another on the merits: we are concerned about the effect SLAPPs have on public participation in our democracy. The concern is serious enough that the National Science Foundation funded our study.

MM: What does a typical SLAPP suit look like?

Pring: As we discuss in the book, the most prevalent are the real estate SLAPPs, where developers or landowners sue people or organizations that oppose their land uses or development plans. About 30 percent of SLAPPs occur in this real estate, zoning or development area.

Another large category we call the "ultimate SLAPP." That is where government officials and government employees turn on the taxpayers and citizens for whom they work. Police SLAPPs, schoolteacher SLAPPs and other public official SLAPPs are prevalent against citizens who have, for example, spoken out against police brutality or made a complaint to a school board about an incompetent teacher.

A third big category is SLAPPs against particular interest groups -- SLAPPs against environmentalists, consumer advocates, women's rights activists, labor unions.

MM: Do you have an estimate as to how many SLAPPs are filed each year?

Pring: No. There is really no way of knowing that given how broken up our court systems are. We don't even know how many divorces are filed in a state. That is what made the research in our book groundbreaking.

Using a variety of research approaches, we have looked at hundreds and hundreds of SLAPPs, and we think that is just the tip of the iceberg. We are looking at a phenomenon where potentially hundreds, maybe thousands, of these cases are filed a year, affecting tens of thousands of Americans.

MM: The SLAPP suit phenomenon began in the 1970s?

Pring: While you can find occasional SLAPPs in the 1800s, typically where politicians sued their critics, those got thrown out of court very quickly and efficiently. Then we go for a long period of time during which we can not find any use of this litigation abuse until around 1970. Suddenly, we get a huge buildup of these cases in the 1970s, 1980s and 1990s, presumably in response to the big rise in political activism and participation from the 1960s on.

MM: Is it the case that local activists are more likely to be victimized than people who are part of national organizations?

Pring: Yes. We found that local cases far predominated. In other words, involvement at the local level -- city, county, school board, etc. -- was far more likely to generate SLAPPs than political activity at the state, let alone national, level.

MM: How do you explain that?

Pring: The things that trigger SLAPPs turn out to be local and specific issues. People seem to get upset enough to go to court when a dispute concerns a particular piece of local property, or a particular local politician or schoolteacher or local toxic waste dump. The more abstract issues that get attention at the state and national levels tend not to incite SLAPPs nearly as much.

MM: Do SLAPP filers target local activists simply because they do not have the resources to defend themselves?

Pring: Not always. The organization that has been SLAPPed the most, about 10 times, I think, is the Sierra Club. You would think any persons in their right minds would realize the Sierra Club has a huge coterie of lawyers and other resources at their beck and call.

Typically, though, when the Sierra Club has been sued, it is because they took a stand on a local issue, anything from a hotel on the California coastline to water projects to wilderness logging.

MM: What is the effect when a SLAPP suit is filed?

Pring: It is devastating, or can be, at a number of levels. That is why we gave SLAPPs this name. The acronym stands for strategic lawsuits against public participation in government. The pressures litigation introduces into what was otherwise a public political process create enormous impacts on the targets of the SLAPP. These impacts -- lost time, resources, expense, stress -- are out of all proportion to whether the target is right or wrong on the issues. You have all kinds of emotional and psychological, as well as financial, pressures coming out of these. Divorces, lost jobs and health problems are not uncommon.

MM: What is the effect on people not targeted who become aware of the SLAPP? Are they energized or chilled?

Pring: We did a subset of the study on what we called the "ripple effects group" -- people who were in the same community, involved in very similar political activities at the time other people got SLAPPed but who were never themselves involved in a lawsuit. We found that SLAPPs are not only very effective at directly chilling political debate, action and reform of the people targeted, but are -- as word gets out about SLAPPs through the media -- very good at chilling and silencing entire communities.

MM: Against that backdrop, what effect does the threat of a SLAPP suit have, even when they are not filed?

Pring: Threats are hard to measure. But we found that even the threat can produce the same chilling effect, particularly if people have had any contact with litigation before and realize how time-consuming, demanding and distracting it can be.

MM: What are the legal grounds for SLAPP suits?

Pring: What SLAPPers or SLAPPer attorneys have to do is find an appropriate legal "camouflage" to disguise their SLAPP. You can't just go down to the court and sue somebody for opposing you in a public political process. That is a no-no.

About a third of cases are filed as defamation. The SLAPPers take the political communications -- the lobbying, the speeches, the testimony -- of the victims and say, "That libeled me or slandered me or defamed me."

There are about six typical SLAPP counts we describe in the book, including abuse of process, conspiracy, civil rights violations and tortious interference with business practices. But defamation is definitely the major camouflage.

MM: Are there any legitimate purposes for defamation and business tort cases?

Pring: Certainly. Defamation lawsuits are as old as the United States and older. There are legitimate defamation cases out there and legitimate business interference cases. But what is immediately suspect is if they are filed because of someone's communication to government. That immediately puts them into this suspect SLAPP category.

It may make sense to punish a person for defamation if they badmouth someone in the street. But it is very suspect if suit is filed after a citizen enters into a legitimate public political context, where government is reaching out and asking for information specifically from the people, and the citizen says, "OK government, here is what I think, here is what I want, here is what you should do."

MM: Is there a distinction between that kind of case and when people are speaking out in an attempt to shape public opinion with an ultimate goal of influencing public policy?

Pring: Our study focuses exclusively on the Petition Clause of the First Amendment. The First Amendment guarantees other rights -- free speech, free press, religion -- but there has not been much attention paid to the last part of the First Amendment, which in some ways is the most fundamental civil right of all -- every citizen's right "to petition their government for redress of grievances."

Today, that antique language does not mean you have to petition or be seeking redress, or even have a grievance. It is really the ultimate right of every citizen in a democracy -- to lobby your government to do what you want. You can do it directly, and in most cases, the communications that triggered the SLAPP are direct communications to the government. However, some cases haven't got to that stage yet, and people are sued when they are still in an information mode with the general public, working to develop enough political support to go to the government and express their views. Those should be equally protected.

MM: In the book, you listed a suit by the United Farm Workers against agribusiness as an example of a SLAPP.

Pring: That is a good example of why, as researchers, we don't take sides on the underlying issues. Good people file SLAPPs, and bad people get SLAPPed.

Just as very sympathetic people like Cesar Chavez sue their political opponents for public political statements, which is a SLAPP, SLAPPs have been filed against the Ku Klux Klan for its political statements. All of that should be equally protected in our judgment. We do not see SLAPPs just as bad guys suing good guys.

However, we did find the typical SLAPP is a for-profit business operation suing individual citizens or small, non-profit groups who are expressing idealistic views as opposed to monetary or economic views.

SLAPPs highlight the tensions between the two pillars of our country: capitalism and democracy. With SLAPPs, you have them in a pitched battle in the courthouse.

MM: So you think a private corporation can be SLAPPed?

Pring: Sure. A lot of the SLAPPs are one business suing another business.

One of the most famous U.S. Supreme Court SLAPPs, the Omni case, involved two gigantic billboard companies -- how unsympathetic can you get? -- which were duking it out to get a monopoly on the business in a small town in Georgia. Each one lobbied the mayor and the city council, and there were suggestions of graft and bribery and all manner of corruption. Finally, one of the billboard companies succeeded in getting a city ordinance passed that grandfathered all of its billboards and stopped the newcomer from putting up any billboards. So the newcomer sued and said that the government lobbying by the winner was tortious interference with business and conspiracy.

The U.S. Supreme Court, in a unanimous decision written by Justice Scalia, threw the case out, saying in effect, "That's ridiculous. Our First Amendment protects attempts to influence government action or outcome, regardless of motive or good faith behavior. We would rather sort all that out at the political level rather than the judicial level."

MM: What are your solutions for SLAPPs?

Pring: The solutions for SLAPPs lie in three areas: how the victims and the lawyers should respond; how the courts could improve their handling of them; and legislation.

We provide a lot of information in the book about how citizens and groups that are involved in political activity can predict in advance when they are in danger of a SLAPP. The best cure is prevention. We have a lot on how to prevent SLAPPs, how to deal with them when they are first threatened, and advice to attorneys on how to handle them once they are filed.

With regard to the courts, it is very simple. Courts should have an early warning process for identifying these cases and quickly dismissing them, to cut the chill off as soon as possible and get people back into the political process instead of the judicial process.

Legislatively, we have worked to help New York, California and and about a dozen other states adopt anti-SLAPP or citizen protection acts. We provide a model law in the book that has been used in a number of states. We think that those are very effective, because they send advanced warnings to lawyers who otherwise might not stop and think before filing these bogus lawsuits: "Don't do this. It is against state policy. If you do do it, there is a very high likelihood that you will get a SLAPPback filed against you."

The important thing to remember is SLAPPs are losers. They are the most losing lawsuit that can be filed in the United States today. Eighty to ninety percent of these cases are dismissed by the first or second court that looks at them. Admittedly, they are devastating in the real world. But as legitimate judicial filings, they are bogus, and they get thrown out.

However, SLAPPbacks are big winners, once the victims get the SLAPP dismissed and then turn the table on the SLAPPer and its attorneys. We have worked in cases where there have been multi-million dollar recoveries, where juries have decided to punish SLAPPers and their lawyers for interfering with the American democratic ideal of public participation in government.

MM: The model legislation essentially creates a SLAPPback right of action?

Pring: Yes. You have it anyway, because all states recognize the tort of malicious prosecution. When a court dismisses the SLAPP, typically they do it because the suit is groundless, frivolous or otherwise malicious. In most states, that automatically sets up a counterlawsuit for malicious prosecution. We call it a "SLAPPback" because there are other counts you can use -- abuse of process, emotional distress, sometimes civil rights violations. Regardless of the label, the theory typically is: you sued me maliciously, you abused the court process in a way you should not have, and you should pay for the consequences.

MM: To what extent are SLAPPs being used outside of the United States?

Pring: Our research on the international spread is scary. SLAPPs are very prevalent in countries that have legal traditions like ours, particularly the UK and present and former British Commonwealth countries like Canada and Australia. In a number of Asian countries -- and Thailand is the grand example -- SLAPPs are an endemic tool of both political parties to stifle each other's campaigns.

But there are large segments of the world where you just don't see them at all. That is not surprising given that we Americans are at an extreme worldwide in how much we trust and use courts. A lot of countries don't give their courts anything like the scope or power over normal human activities that we do. Some just "disappear" their political opponents.

MM: Have you been able to identify any individuals, firms or groups that originated or have pushed the idea of SLAPPs?

Pring: One example that comes to mind are police and teachers. A number of national police unions and some of the police magazines encourage officers to sue people who file police misconduct reports. That is a great way to keep the public from alerting the police department about bad activity.

The national teachers' union has done the opposite. It has been very anti-SLAPP, and encouraged teachers not to file lawsuits against parents who complain about them to the school board. However, there are some state teachers unions, including Colorado's, that have gone in the opposite direction, and have actually subsidized and gotten lawyers for teachers to strike back at parents who criticize their teaching or behavior toward students.

MM: Have you seen any seminars for law firms on how to conduct SLAPPs?

Pring: No.

One of the big surprises we found in the study was that SLAPPs typically are not David v. Goliath kinds of things, where corporate America was grinding citizens under its heel. Instead, it turns out the vast majority of SLAPPs are filed by little frogs in little puddles. A suit may be filed by a "big" real estate developer, but only in a local community sense.

There have been some SLAPPs filed by recognized national organizations like Shell Oil and Medema Homes, but it has been rare. The reason large corporations are not filing SLAPPs may not be that they are any nicer to their political opponents. It may just be that they have better tools to stifle political opposition other than a cumbersome court case that is going to subject them to very bad public relations and maybe a multi-million dollar lost lawsuit.

Basically, SLAPPs get filed by losers. A company or real estate developer that is succeeding in the political process is not going to slow things down and take the risk of filing the lawsuit. SLAPPs typically get filed by the frustrated.

We have talked to many SLAPPers and find frustration a common theme; they feel they have no way to undo what the opposition is doing to them in the public political arena, so they decide to shift things to the private judicial arena, where they might have a chance to win. That is a very important thing for politically active people to keep in mind: it is when they are being most successful that they should be most alert to the possibility of somebody trying to switch forums on them with a SLAPP.

MM: Have you seen any kind of backlash or move for corrective action in the wake of high profile cases like the Oprah case or the McLibel one?

Pring: Yes. When a successful anti-SLAPP statute is passed, it is usually because the legislature has become upset about some really outrageous high-profile SLAPP. The legislator who introduces the SLAPP bill has often had one of their constituents get SLAPPed. The high-profile cases do tend to cause a political backlash against SLAPPers. Oprah's successful defense of the Texas "beef" SLAPP could well spur a federal anti-SLAPP bill in the coming year.



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