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SLAPPs continue despite laws to protect citizen critics

By The Associated Press
06.04.02

OLYMPIA, Wash. — Despite laws meant to protect them, people who ask the government to rein in property developers, potential polluters and even public officials still often find themselves slapped with lawsuits designed to muzzle their protests.

A new law in Washington state will strengthen protections against so-called SLAPP lawsuits this month. At least 19 states around the country — including Florida, Massachusetts, New York and Oregon — have similar laws. But experts say that even in those states, the practice of using the staggering cost of legal defense to muffle citizen complaints continues.

"It's still being used to shut people up," said Penelope Canan, a University of Denver professor who co-wrote SLAPPS: Getting Sued for Speaking Out, the definitive 1996 book on the topic.

SLAPP stands for Strategic Lawsuit Against Public Participation. Canan and George Pring, her co-author, coined the term. Such lawsuits take so many forms that it's difficult to track them, and few statistics exist, Canan said.

But anecdotes abound. Among the most common SLAPPs are defamation lawsuits against people who testify before public agencies.

Here's an example: A property developer proposes a large subdivision in a rural area and seeks relevant permits. Local residents and environmentalists oppose the project and testify against it at public hearings. The developer sues for defamation.

Another common situation involves defamation lawsuits against people who accuse police officers of misconduct.

The chances of winning a SLAPP are very small because free speech and petitioning the government are rights protected by state and federal constitutions.

"Although SLAPPS always lose, it's still slow and onerous," Canan said.

Defendants' legal bills skyrocket as lawyers pepper them with demands for documents and otherwise drag the case out. Then the developer can offer a settlement — provided the defendant pipes down.

"They asked us for everything you've ever written," said Sharon Gain, a member of the Pierce County Rural Citizens Association, which was sued for its opposition to a real estate development. "Everything you've ever said to each other. It was horrible."

The Washington Supreme Court tossed out that lawsuit last month — more than three years after it was filed. Why so long? Two little words: good faith.

Washington's 1989 anti-SLAPP law, the first in the nation, called for speedy dismissal of lawsuits targeting someone who complains to a local, state or federal agency "in good faith." But the "good faith" standard, experts say, is a loophole plenty big enough for SLAPPers.

It gives the SLAPPer something to argue about in court and requires a judge to make a ruling before a case can be dismissed.

The new law set to take effect on June 13 drops the good faith requirement and will allow citizens slapped with a SLAPP to seek as much as $10,000 in damages along with their legal costs.

"It's probably the most favorable law in the country to protecting citizens right to petition," said Shawn Newman, an attorney who frequently defends the SLAPPed and helped write the new law. "If anybody is petitioning government and seeking action, they're protected."

Like the 1989 law, the change passed the Legislature without a single "no" vote. Although anti-SLAPP laws are sometimes derided as protecting the "right to lie," few people will defend the SLAPP itself.

"Nobody's against either of those two constitutional values," said Kris Tefft, legal counsel for the Building Industry Association of Washington, a powerful player in Washington politics that stayed on the sidelines when the change was passed this year.

"We're not generally in favor of citizen groups making it hell for developers if they're doing it with improper methods," Tefft said. "You have to take those cases on a case-by-case basis."

Newman says the idea is to protect citizen activists up front because SLAPPs are often filed as a calculated risk against people without the money or gumption to fight back in court.

Those who can fight back sometimes win big with malicious prosecution lawsuits — known as SLAPPbacks.

In a Missouri case in the early 1990s, a woman who was SLAPPed by a Canadian company for opposing a medical waste incinerator fought back and won an $86.5 million jury verdict. The company wound up turning over its Missouri properties to her in a settlement.

But that case involved a dedicated lawyer and years of struggle against a powerful opponent. Many activists aren't game for such a fight, and legal experts say they shouldn't have to be.

So state anti-SLAPP laws — mostly adopted during the 1990s — mandate early dismissal of lawsuits against people for petitioning government.

In California, for example, judges use a two-part test. If the defendant can prove the case is a SLAPP, then the plaintiff has to prove the case has a likelihood of success to prevent immediate dismissal, said David Greene, executive director of the First Amendment Project in Oakland, Calif.

"It's been a very useful tool for quickly disposing of intimidating and harassing lawsuits," Greene said.

But many states have no law at all, and even where laws exist, Canan says the SLAPP attorneys are finding new and different ways to intimidate.

"The anti-SLAPP laws are not all ideal," Canan said. "Some protect against only one kind of lawsuit, and I do think they've adapted."


Related

Utah Legislature passes anti-SLAPP bill

Supporters say legislation strengthens First Amendment by stopping frivolous lawsuits against those who speak out at public meetings. 03.06.01

Oregon House passes anti-SLAPP bill
Measure would allow defendants to quickly challenge lawsuits designed to intimidate them into keeping quiet on public issues. 05.07.01

Landfill owners to pay $400,000 to woman who fought SLAPP
Settlement resolves dispute that began in 1992 when company sued critic Nancy Hsu Fleming for defamation. 12.14.01

Georgia anti-SLAPP law doesn't protect trespassing
The 'right of free speech does not include the right to trespass onto another's land,' state high court says in ruling activist can be sued for taking photos on developer's land. 03.29.02

Washington high court tosses developer's defamation suit
Along with new law, ruling in favor of citizen groups who opposed housing development beefs up legal protections against SLAPPs. 05.17.02

How to SLAPP back
By Douglas Lee Make anti-SLAPP laws strong enough and bullies won't be tempted to quash free speech. 06.19.98

SLAPP suits


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