By Lori Potter
Partner, Kaplan Kirsch & Rockwell
Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined. — Judge J. Nicholas Colabella (1992)
Strong statement or overstatement? Judge Colabella was referring to the threat posed by Strategic Lawsuits Against Public Participation, or "SLAPPs." SLAPPs are lawsuits filed in response to or retaliation for citizen communications with government entities and employees.
Citizens have been sued for testifying before their city councils and county commissions, about building permit and zoning change applications, for expressing concerns to school board members, and for reporting violations of environmental laws to regulatory agencies, to give just three of thousands of examples. In short, these citizens were sued for doing exactly what the Constitution allows and encourages them to do, which accounts for Colabella’s strong words in Gordon v. Marrone, a 1992 New York case.
The particular provision of the First Amendment that is threatened by SLAPPs is the petition clause ("Congress shall make no law " abridging the " right of the people " to petition the Government for a redress of grievances"). George Pring and Penelope Canan, the authors of the leading work on the topic, SLAPPs: Getting Sued for Speaking Out (and the coiners of the acronym), have dubbed the petition clause "the unknown soldier of the Bill of Rights."
While the petition clause may be less renowned than the First Amendment’s guarantees of free speech, press and religion, the right it protects is every bit as basic to our form of government.
In a representative democracy, public participation is the cornerstone of the system; it is a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. On a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal or policy underpinnings, which go back to Aristotle and the Magna Carta, among other sources. We simply take for granted what is both obvious and invisible: Public participation in government is a creed by which the nation lives. Public participation — i.e., petitioning — ranges from the sublime to the messy, but it is authorized and encouraged by procedures and forms at every level of every branch of our government. That is why being sued for engaging in petitioning activities not only strikes one as incongruous but indeed is antithetical to our form of constitutional democracy.
The phenomenon of suing an individual who communicates with or tries to influence the government is common. Pring and Canan’s national study in the early 1990s found thousands of examples of SLAPPs. Their study also found countless additional examples of threats of lawsuits that had the same desired effect: causing citizens to rethink and retreat from their public participation for fear of costly and time-consuming litigation.
SLAPP complaints do not arrive bearing claims labeled as "SLAPPs." Typically, a "SLAPPer" brings causes of action for defamation, conspiracy, abuse of process, interference with contract, and other common-law claims. As Pring and Canan point out, the first — and sometimes highest — hurdle for an attorney defending against a SLAPP for the first time is recognizing that what may appear to be a garden-variety tort claim is not, and that such a claim may be effectively prevented from becoming a lawsuit if it targets speech to any branch of government.
Petition-clause immunity as a defense against SLAPPs
When SLAPPs are defended against on the basis of the petition clause of the First Amendment, nearly all such litigation is dismissed, or summary judgment is entered for the defendant, as Pring and Canan note. Consequently, most of the reported case law is favorable to SLAPP defendants. This lopsided win-loss record has done nothing to discourage the filing of SLAPPs, however. Pring and Canan concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose.
The U.S. Supreme Court and the lower federal courts (and many state courts) have found that the petition clause provides an immunity to citizens who speak out to influence the government. This immunity is sometimes known as Noerr-Pennington immunity, because it has its roots in a line of antitrust cases that hold that efforts to influence public officials through lobbying, publicity, and other contact are protected by the petition clause (and are not a violation of antitrust law) even when the petitioning activity is undertaken for a disfavored motive, such as eliminating competition. (See United Mine Workers v. Pennington, 1965; Eastern Railroad Presidents Conference v. Noerr Motor Freight, 1961.)
Later Supreme Court decisions also make clear that "Noerr-Pennington immunity" is synonymous with First Amendment immunity and applies to petitioning and to claims outside the antitrust context. For example, in NAACP v. Claiborne Hardware (1982), the Court overturned judgments in favor of merchants whose businesses had been economically harmed by a boycott. The NAACP organized a boycott and picketing to support its petition to the local government for passage of anti-discrimination laws to advance racial equality and integration. The Court relied on the Noerr-Pennington line of cases and held that all of the NAACP’s conduct was immunized by the First Amendment, notwithstanding the incidental economic impact on merchants. Accordingly, the Court overturned the holdings of the state courts of Mississippi and accorded immunity to the NAACP against state-law claims.
Two more-recent Supreme Court decisions in antitrust litigation, Professional Real Estate Investors v. Columbia Pictures, (1993) and Columbia v. Omni Outdoor Advertising (1991), applied petition-clause analysis and clarified the burden faced by a plaintiff challenging petitioning activity. When it appears that a plaintiff’s claims are lodged in response to a defendant’s legitimate use of government processes, a court must apply heightened scrutiny to those claims and dismiss them unless they can clear a high barrier.
Under the test first articulated in Omni, a defendant is entitled to immunity unless a plaintiff can demonstrate that defendant’s petitioning was "a sham." This requires the plaintiff to prove that a defendant used government processes as a "weapon." This inquiry looks not at the defendant’s intent or purpose, but at whether the defendant’s efforts were not genuinely aimed at procuring favorable government action at all. So long as the defendant acts to obtain a government outcome — a decision, action, or refusal to act — the defendant’s petitioning is not a sham and enjoys immunity under the petition clause. A winning petition — e.g., a successful lawsuit, or a request to an administrative agency that is acted upon favorably — by definition is not "a sham." At the motion-to-dismiss or summary-judgment stage, then, the standard is an objective one that looks to the outcome of the process defendant engaged in, not a subjective one that looks to defendant’s intent. This result is consistent with the petition-clause goal of encouraging and protecting speech directed to the government.
Professional Real Estate Investors presented the question of petition-clause immunity as applied to counterclaims in litigation and set forth a two-part definition of "sham." The first prong requires a plaintiff to show that a citizen’s communications with government agencies were "objectively baseless." The second prong, which a court need not even consider if a plaintiff cannot satisfy the first, is the test articulated in Omni: whether the defendant’s communications were not genuinely aimed at procuring favorable government action. The SLAPPer bears the burden of proof on both prongs and must meet that burden at the motion-to-dismiss or summary-judgment stage of the case.
Many state courts have fashioned similar tests under the petition clauses of their state constitutions, or have applied First Amendment petition-clause immunity to claims arising in state courts. (See, e.g., Protect Our Mountain Environment, Inc. v. District Court, a 1984 Colorado case. The “sham” burden of proof has been codified in some states’ anti-SLAPP statutes. (See a list of states with laws protecting SLAPP victims.)
Disposing of cases on the basis of petition-clause immunity
The policy underlying First Amendment immunity requires prompt dismissal of claims invalidated by petition-clause immunity, sparing the courts and litigants the costs and time otherwise expended on litigation targeted at protected petitioning activities. Although experience shows that nearly all claims targeting petitioning are eventually dismissed, the mere filing of the action causes a citizen to pay a high price in time, money and peace of mind for having exercised the constitutional right to petition the government.
In the Omni case, the Supreme Court indicated that in order to achieve the goal of minimizing intrusion on the First Amendment, lawsuits that attack constitutionally protected petitioning activities must be dismissed by the court on motion, not heard by a jury at trial, except in those rare instances when a plaintiff can prove the defendant’s petitioning comes within the "sham" exception to immunity. First Amendment petitioning activity is chilled by allowing a plaintiff to conduct discovery, go to trial, and otherwise exhaust the time and resources of a defendant on claims that cannot cross the immunity threshold.
Courts also have achieved the goal of early review and dismissal by enforcing strict pleading standards as a result of the assertion of immunity as a ground for dismissal. (Pleading standards are the legal requirements for pleading a cause of action in court.) Where a claim touches upon the right to petition, many courts will apply a heightened pleading standard (see, e.g., Oregon Natural Resources Council v. Mohla, a 1991 case from the 9th Circuit). These courts concur with the conclusion Pring and Canan made after their study: There is a danger that the mere filing of the action will chill the exercise of First Amendment rights, and this demands more specific allegations than would otherwise be required. Specifically, a plaintiff cannot overcome the target’s First Amendment immunity if it fails to allege that defendant communicated with government for a reason other than to support petitioning activity. In other words, some courts have held that to survive a motion to dismiss a plaintiff must allege that defendant engaged in tortious activity for some purpose other than to influence a governmental agency or process. The certification requirements of Rule 11 of the Federal Rules of Civil Procedure and its state counterparts would apply to such allegations.