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SLAPPs: Getting Sued for Speaking Out.

In 1980, Rick Webb, an environmental activist in West Virginia, complained about DLM Coal Corporation's poisoning of an area river. The company was already known as a "high violator," in the words of one federal inspector, and shortly after Webb reported the problem to the Environmental Protection Agency, the EPA issued a formal notice of intent to revoke DLM's strip mine license. DLM responded not only by defending itself against the EPA notice, but by suing Webb for $200,000 for "defamation."

In other words, Webb got "SLAPPed" - hit with what University of Denver professors George Pring and Penelope Canan call a "Strategic lawsuit Against Public Participation," a suit brought in the guise of slander, libel tortious interference with contract, or other legal claims, but ultimately intended to punish someone who speaks out on a public controversy.

As it happened, DLM's suit backfired; the West Virginia Supreme Court threw it out within a year, using strong language that would deter future SLAPPs in the state. Unfortunately, many SLAPP stories do not end so happily. Local business, development, or other interests frequently succeed in taking a terrible toll on citizen leaders who speak out on important public issues and, more broadly, in exerting a cheating effect on entire communities, First Amendment rights.

Consider the case of Brenda Hill. When she discovered that she and her husband could not get a mortgage because their real estate company had not paid taxes owed on their house, she reported the tax-cheating company to the Washington state government. Encouraged by a tax collector, she uncovered hundreds of thousands of dollars in unpaid taxes by the company on approximately 300 homes - taxes later collected by the state. The Robert John Real Estate Company SLAPPed Brenda Hill and her husband with a defamation suit, compounding the injury by telling neighbors that the Hills were responsible for some of them losing their homes and having their credit damaged. The stress of the suit, vociferous attacks from the real estate company, and the neighborhood ostracism devastated the Hills. Six years after the episode began, a jury found the Hills not guilty of slander.

The Hill case is instructive, because it illustrates just how insidious SLAPPs are. Hill won the SLAPP in the courtroom, but she lost in the real world. Robert John punished her for challenging its power, sapped her energy and resources in a drawn-out court battle, and issued a powerful warning to other citizens: Speak out at your own risk.

The message of SLAPPs "is unmistakable," Pring and Canan write: "There is a price to be paid for voicing one's views to the government. The price can be a multimillion-dollar lawsuit, which, even if successfully defended, can mean enormous expense, lost time, insecurity, risk, fear, and all the other stresses of extended litigation. SLAPPs threaten the very future of `citizen involvement' or public participation in government...."

Such strident rhetoric is not hyperbolic, given the proliferation of SLAPPs documented by Pring and Canan. In the last 12 years, they have tracked SLAPPs filed over a letter written to the U.S. president, as an outgrowth of a neighborhood dispute over a tennis court, and by numerous government officials.

Defining SLAPPs may be the authors, most important contribution. Pring and Canan regard all SLAPPs as First Amendment matters, which is critical; it allows judges to dismiss the SLAPPs quickly without the fact-intensive scrutiny required of slander or business interference cases. (Did he really call her a liar and a cheat, and if so, did he do so with malice, and if so, is she really a liar and a cheat?) Such fact-intensive scrutiny at the very least requires extended pretrial discovery, and, typically, a full-blown trial.

Pring and Canan's definition suggests their proposed solutions to SLAPPs. First, judges should recognize SLAPPs for what they are, and quickly dismiss them. Second, SLAPP targets must define the suits as First Amendment issues, and they should look to file "SLAPPback" suits, alleging abuse of process. Some SLAPPbacks have led to verdicts running into the millions of dollars-surely the best deterrent to SLAPP filing. (To the concern that SLAPPbacks are as abusive of the democratic process as SLAPPs, Pring and Canan retort that SLAPPbacks do attempt not to quell participation in government, but to vindicate constitutional rights) Finally, the authors support legislation that would establish rapid review of SLAPP claims and shift the burden of proof to the filer.

About the only criticism the book merits is that the authors do not convey a full sense of the drama of a SLAPP, the palpable fear it can engender, the real trauma it can inflict. But what it lacks in emotion the book makes up for with analytic rigor and a rare combination of comprehensiveness and accessibility.
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Author:Weissman, Robert
Publication:Washington Monthly
Article Type:Book Review
Date:Oct 1, 1996
Words:793
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