CLDC on SLAPPs: Strategic Lawsuits Against Public Participation

There is nothing more offensive and foreign to the notion of justice in America than the SLAPP suit — the “Strategic Lawsuit Against Public Participation.” A SLAPP suit is an attempt by an aggressor — almost always a corporation or powerful individual — to enlist the civil justice laws in an attempt to punish someone else for opposing the more powerful side.

A SLAPP suit is a bogus lawsuit to intimidate or exhaust the less powerful person. The purpose is not necessarily to win anything, but rather to intimidate an opponent and deplete their resources. The Civil Liberties Defense Center understands the threat:

Strategic Lawsuits against Public Participation

Strategic Lawsuits against Public Participation, also known as SLAPP suits, ordinarily arise out of defamation lawsuits. Defamation is a common law tort whereby one citizen can sue another citizen for damage to reputation. The difference between an ordinary defamation lawsuit and a SLAPP suit is that the plaintiff in a SLAPP suit does not generally plan to actually win their lawsuit. Instead, SLAPP suits are intended to intimidate, censor, disparage, burden, and punish activists for exercising their right to free speech and protest. SLAPP suits are used against individuals who may have meager resources and are unable to afford the legal counsel necessary to help them protect their rights.

As one court has stated:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense.
The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.

Those who lack the financial resources and emotional stamina to play out the “game” face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle.
Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.

Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. Ct. 1992)

The use of SLAPP suits as a harassment tool became so pervasive that beginning in the 1990’s, some states began adopting laws — commonly referred to as “anti-SLAPP” laws — to protect a citizen’s rights to engage in free speech. Not all of these laws are alike, but many of these anti-SLAPP laws offer defendants the opportunity to recoup their legal fees if they prove that they have been forced to defend themselves from a frivolous lawsuit.

CLICK HERE to see if your state has anti-SLAPP laws and to get updates on progress of federal anti-SLAPP legislation.

However, even if the defendant ultimately prevails with an anti-SLAPP suit, the defendant will likely have wasted multiple years defending their case. Thus, exoneration from a SLAPP suit, if it comes at all, will not come without years of time wasted on litigation and emotional turmoil, as well as the loss of thousands of dollars if a defendant is not lucky enough to live in the few states that have anti-SLAPP laws.

In the last twenty years, animal rights activists in particular have been a target of these suits, some for merely posting a blog on their personal website, and others for their acts of protest and political demonstration. The threat of these lawsuits is enough to make any social change advocate hesitate before expressing their opinion, in effect illegally chilling that individual’s exercise of the First Amendment.

CLDC is a national expert in defending activists and their campaigns from the threat of unconstitutional SLAPP suits. CLDC has a large brief bank and legal resources available for lawyers. If you are an attorney representing environmental or social change activists, please contact us. If you are an activist or organizer and a SLAPP suit has been filed against you, contact the CLDC immediately for assistance. In most states, you only have 30 days from when you were served with the lawsuit to file a response asserting constitutional defenses. CLDC provides trainings to activist campaigns on SLAPP suits.

Defamation in the Political Arena

Because the First Amendment protects our right to free speech, the common law legal claim of defamation can only be used against activity that is not protected speech under the Constitution. Essentially, there is no defamation of a public figure or concerning a matter of public concern unless the speaker knowingly and recklessly made a false statement with a “malicious intent” that caused injury to the affected individual. See New York Times Company & Ralph Abernathy et al. v. Sullivan, 376 U.S. 254 (1964). However, in the realm of SLAPP suits, the corporations and individuals who file the lawsuits routinely ignore these Constitutional safeguards. For example, even though animal welfare advocacy is an issue of public interest that receives Constitutional protection, see e.g. Dienes v. Associated Newspapers, Inc., 137 Mich. App. 272, 276, SLAPP suits against animal welfare advocates may be filed and proceed for years without any proof that statements made against them were false or made with a reckless disregard for the truth.

Animal Welfare Advocacy SLAPP suits

Letter to Editor in Scientific Journal:
Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270 (1991)(PDF)

In 1983, Dr. Shirley McGreal, who was chair of the International Primate Protection League, submitted a letter to the editor of the Journal of Medical Primatology. The letter criticized Immuno AG, a multinational corporation based in Austria, and their plans to establish a facility in Sierra Leone in order to conduct hepatitis research using chimpanzees. In January of 1983, Dr. J. Moor-Jankowski, the editor of the journal, submitted a copy of the letter to the corporation for comment or reply and specifically stated that the journal would not publish the letter if the allegations could be proven false. The corporation never provided proof that the allegations were false, and the journal eventually published the letter.

In December of 1984, the corporation sued the author of the letter, the editor of the journal, and six other defendants. As the New York high court stated in its opinion eventually dismissing the case after seven years of litigation, the case was a “libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy.” Although the lawsuit had initially been filed against eight defendants for two separate publications, the time and money-consuming litigation eventually exhausted seven of the defendants to the point that they paid off the corporation with “substantial sums” to be freed from the litigation. The editor of the journal was the only surviving fighter and had to endure seven years of litigation, including appeals to the U.S. Supreme Court, his own 14 day deposition, and hundreds of thousands of dollars of legal expenses. To the chagrin of all of the defendants who agreed to settle with the corporation, the New York high court ultimately dismissed the lawsuit because most of the statements were Constitutionally protected as statements of personal opinion. Additionally, the corporation failed to prove that any of the factual statements were actually false.

Fur Protest

Schumacher v. City of Portland, 2008 WL 219603, No. CV-07-601-MO (D. Or. Jan. 23, 2008)(PDF)

Starting in 2005, animal welfare advocates held weekly protests outside of Schumacher Furs and Outerwear, a retail store in Portland, Oregon. The protests usually involved a few dozen activists who would hold up signs with anti-fur messages, chant slogans, and play videos on portable televisions depicting animals being tortured and skinned alive for their fur. After two years of these weekly protests and public education campaigns that were successfully encouraging the public to choose more humane way to clothe themselves, Schumacher sued the City of Portland, In Defense of Animals, Animal Liberation Front, People for the Ethical Treatment of Animals, Inc., and several individuals, for claims of Intentional Infliction of Emotional Distress, Interference with Business Relations, Interference with Contract, Public Nuisance, and Trespass. The company argued that the city was a necessary party because it had allegedly failed to protect the company from illegal protest activity. The company requested damages from the city in the amount of $6.2 million, and from all the other parties for $6.6 million each. Although there was evidence of illegal conduct related to the protests, the company had no evidence that any of the named defendants were responsible for illegal conduct. Accordingly, the activists asked the court to dismiss the lawsuit under Oregon’s anti-SLAPP law, ORS 31.150.

The court refused the company’s request to impute illegal conduct to the activists, stating

I find it was not objectively reasonable to sue the organizations and individuals [that] Plaintiffs were able to identify at the protests, or whose publications were identified as in the case of PETA, on the hunch that those organizations and individuals must be involved in the illegal activities of other protestors Plaintiffs could not identify. . . I granted the Motions to Strike because Plaintiffs did not produce evidence the prevailing defendants did anything illegal.”

Additionally, the court vigorously chastised the company for filing a SLAPP suit:

Although Plaintiffs may have had meritorious claims against people whose names they did not know, or even against the City of Portland, they sued people against whom they had no evidence for $6.6 million, sought to restrict their First Amendment speech rights, and disparaged their reputations with accusations of criminal conduct, terrorist affiliations, and responsibility for “shutting down” a business whose financial solvency was questionable before the protesting activities began. This was an extraordinary abuse of the litigation process. . . . I find that awarding fees in this case will properly serve to deter putative plaintiffs from filing multi-million dollar suits against non-profit groups and private citizens engaged in First Amendment activities.

Accordingly, the court dismissed the suit, and awarded legal expenses to the activists in the amount of almost $100,000.00.

Blog Posting

Comins v. VanVoorhis, Case No. 2009 CA 15047-0 (PDF)
(9th Judicial District Circuit Court, Orange County, Florida)

In 2008, a blogger named Matthew VanVoorhis posted a YouTube video link to a video of a man named Chris Comins shooting two dogs, along with two articles expressing his concern, anger, and opinion on the incident. Comins was later charged with two counts of felony animal abuse for this incident. Despite the video documentation of the event and the pending felony charges, Comins sued VanVoorhis for defamation and “tortuous interference with a business relationship,” and has requested an unspecified amount of damages that at least exceed $15,000. Comins argues that the blog postings “contain numerous factual inaccuracies, gross exaggerations and damaging statements regarding Plaintiff and the incident.” He argues that the “blog posts are designed to incite violence and pose an imminent threat to Plaintiff and employees of his company.” Van Voorhis has filed a motion to dismiss the complaint and has filed counter claims in the lawsuit arguing that the lawsuit violates his First Amendment rights.

https://anti-slapp.org/your-states-free-speech-protection/
Taken from The Public Participation Project website, Anti-SLAPP.org