/* Written 12:10 pm Jan 26, 1994 by email@example.com in igc:elaw.public.in */ /* -------
/* Written 12:10 pm Jan 26, 1994 by firstname.lastname@example.org in
/* ---------- "citizens' slapp suit guide" ---------- */
A Primer For Protecting You & Your Affiliate
Against SLAPP Suits
You've been instrumental in helping the affiliate take a strong
stance against a developer's proposal to fill in a small wetland so
it can build new apartment buildings. You helped with the research,
you organized others to assist in fighting the issue, and you
testified at a recent planning commission meeting against the
project. Last week you reported the good news to your board of
directors that the proposal was defeated: your efforts paid off.
What you didn't expect was to be served with papers for a lawsuit by
the developer claiming you "defamed" the developer. The complaint
alleges that you made inaccurate statements about the developer,
thereby causing it to lose thousands of dollars. What might the
developer be trying to do? How do you recognize a SLAPP suit? What
can you do to avoid future suits? What can you do to eliminate this
SLAPP suit? Read on.
What Might The Developer Be Trying To Do?
You've probably just been "SLAPPED." SLAPPs are "Strategic Lawsuits
Against Public Participation" that are brought by businesses or
municipalities to prevent citizens from speaking out against dubious
development projects or in retaliation for such public opposition. A
SLAPP suit is usually a desperate attempt by a project proponent to
save the project or recoup lost expenses or profits...no matter what
SLAPP suits are rarely brought for the reasons alleged in their
complaints. More often, the primary purpose of the suit is to stifle
-- or in legal terms "chill" -- public criticism of proposed
projects. By bringing a suit against you claiming mega-damages, the
developer is hoping that you and others will be intimidated into
silencing your opposition to this or future project proposals. Thus,
in the words of two experts in the field, Professors George W. Pring
and Penelope Canan of the University of Denver, "SLAPPs have
`worked' even when they lose."
The purpose of SLAPPs is not to win on the merits. Rather, they are
won when targeted defendants no longer are able to find the
financial, emotional, or mental wherewithal to sustain their
defense. Fortunately, courts often recognize this. According to one
court's ruling on a 1992 New York SLAPP suit:
The ripple effect of such suits in our society is enormous.
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.
The increasingly common use of SLAPPs threatens citizens'
willingness to exercise their right of free speech and their right
to petition the government for a redress of grievances under the
Constitution. According to a report by the Library of Congress, the
right to petition the government "has been expanded beyond its
literal terms to protect any peaceful, lawful attempt to promote or
discourage government actions at all levels and branches of
government, including the electorate." Thus, the rights of freedom
of speech and to petition the government include the right to
challenge or influence government actions, whether by petitioning
for government approval or disapproval of projects, providing public
comment, testifying, lobbying, litigating, and even demonstrating
peacefully or otherwise speaking out against a proposed project.
The rights of free speech and petition have always been mainstays of
American democracy. The late U.S. Supreme Court Justice Oliver
Wendell Holmes recognized the importance of public interest speech
when he wrote: "The ultimate good desired is better reached by free
trade in ideas [and] the best test of truth is the power of the
thought to get itself accepted in the competition of the
market...That at any rate is the theory of our Constitution." If
Justice Holmes had been alive today, he undoubtedly would have found
SLAPP suits offensive to your Constitutional rights. Fortunately, as
you will soon read, many of today's judges recognize the true threat
that SLAPPs present to ordinary people who want social change.
How Do You Recognize A SLAPP Suit?
SLAPP suits have common characteristics. Therefore, it's not
difficult to know if you're being SLAPPED:
1. The suit is a civil complaint or counterclaim;
2. filed against nongovernmental individuals or organizations;
3. because of their communications to governmental entities,
officials, or the general population (electorate); and
4. on a substantive issue of some public interest or concern.
Some of the most common issues of public interest or concern are:
real estate development and zoning, environmental protection,
wetlands and wildlife preservation, and neighborhood defense
(otherwise known as "NIMBY" or "Not In My Back Yard"). Some of the
most common legal claims are: defamation (slander or libel);
business torts (interference with contract, business, economic
expectancy, product disparagement, restraint of trade); other torts
(nuisance, invasion of privacy); judicial or administrative torts
(abuse of process), or conspiracy to commit one of the above torts;
and constitutional and civil rights violations (i.e.,
discrimination, "taking" private property rights, etc.).
What Can You Do To Avoid SLAPP Suits?
The most important element to the SLAPP equation is to not let the
possibility of a lawsuit deter you in your efforts. That's exactly
what most SLAPP plaintiffs are counting on. According to the late
U.S. Supreme Court Justice Louis Brandeis: "The greatest menace to
freedom is an inert people."
Although there is no way to avoid being SLAPPed, you can take
certain measures to greatly reduce the likelihood of being SLAPPed
in the future. First, make sure your advocacy is factually accurate,
on firm legal footing, and not undertaken for some improper purpose
(for example, inciting others to protest a proposal so that you can
gain financially would be improper). It is not necessary that every
word be grounded in fact. If, for example, your criticisms are
leveled at proponents of projects that are of public concern, you
need only ensure that your statements are not made with the
knowledge that they are false. Likewise, you cannot make statements
with reckless disregard for whether they are false or not. Remember,
the truth is an absolute defense in most cases. In short, don't
engage in hyperbole. Stick to the facts. Act responsibly.
Then there are actions you can take to minimize financial and legal
risk to yourself. First, it helps if you're speaking on behalf of an
organization after receiving the authorization to do so. Because
SLAPPs are intended primarily to intimidate, SLAPP plaintiffs are
less likely to sue targets that may be able to sustain a defense
over time. Obviously, a legal defense is more difficult for an
individual citizen to sustain than for a group of people or a
financially-stable organization to sustain. Coordinate closely with
your affiliate board, particularly on issues that are likely to be
Second, make sure the organization for which you speak properly
identifies those who speak out on its behalf. This may usually be
achieved by including an indemnity provision in the organization's
constitution or by-laws. Appendix A provides a sample
indemnification clause. To make sure that the constitution's or
by-laws' indemnification is meaningful, investigate whether the
affiliate carries adequate Directors' and Officers' (D&O) insurance.
For more long-term protection, try to enact anti-SLAPP legislation
in your state. New York, Washington, and California have enacted
such legislation and many others have attempted to do so. Appendix B
contains references to adopted and proposed anti-SLAPP laws. You may
want to help work toward the passage of anti-SLAPP legislation in
your state or propose new anti-SLAPP legislation where the issue has
not been raised (SLAPP suits have been documented in every state and
the District of Columbia!) An easy guide to what legislation should
entail and a model bill can be obtained by writing to Professor
George Pring at the address listed in the Reference section below.
Obviously, you should count on organizing widespread support for
getting this legislation passed; and be sure to rally support from
public interest organizations outside of the environmental
community. Allow two years or more for your efforts to snowball in
success until the legislature passes your legislation.
What Can You Do To Eliminate A SLAPP Suit?
First, prepare to retain an attorney. But, depending on the
circumstances, you may not have to retain her yourself. For example,
if you were speaking on behalf of your affiliate, you may be
"indemnified," that is, the affiliate may undertake a lawsuit to
defend you. You are relatively safe if you are a board member,
received authorization by the board to speak out against the
wetland-fill project, and your affiliate's constitution and by-laws
indemnify you while you are acting within the scope of your duties
as a board member. You may also be protected if you are a member or
volunteer and received authorization to speak out.
You might also approach the governmental entity to which you
testified and convince it to assist in your defense by arguing that
SLAPP suits will chill input to the entity in the future (which is
ultimately not in the entity's interest) or that by inviting
testimony, the entity should come to the aid of those who testify in
good faith. Often, those who testify to a governmental entity are
privileged to do so. In other words, testimony is often a safe
harbor from lawsuits by those against whom you have testified.
Nevertheless, these efforts will merely shift the burden of
defending the lawsuit, not eliminate the lawsuit.
If your organization can't or won't obtain an attorney to defend
you, check with other organizations or the state bar association to
see if there are lawyers who have offered to provide legal service
on a "pro bono" (free or reduced fee) basis to public interest
groups. Because SLAPP suits pose such a threat to public interest
activities and important constitutional rights, it may be fairly
easy to find a public interest lawyer willing to take your case on a
pro bono basis.
If all else fails and you can't find a lawyer to take your case pro
bono, hire one yourself. SLAPP suits should never be taken lightly
-- you must defend yourself! Don't wait until the last minute to
seek legal assistance.
To try to eliminate the suit, you should request that your attorney
communicate to the plaintiff's attorney the personal risks of
continuing with a SLAPP suit. SLAPP attorneys themselves can be
penalized under Rule 11 of the Federal Rules of Civil Procedure for
bringing frivolous lawsuits or lose SLAPP back jury verdicts. Rule
11 sanctions, which carry with them the possibility of stiff
monetary penalties and even the possibility of losing licenses to
practice law, may be the appropriate specter to raise to deter
plaintiffs' attorneys from continuing in the litigation. Rule 11
will make the attorney personally sit up and take notice. Some
states have rules that are the same or similar to the Federal Rule
There are tools to make the plaintiffs sit up and take notice too.
Because SLAPP suits are rarely successful on the merits of the case
and are increasingly recognized for what they are, violations of
citizens' constitutional rights, chances are good your attorney can
eliminate the suit before it becomes protracted. SLAPP suits are
often eliminated early in the litigation by filing preliminary
motions (usually a Motion to Dismiss or a Motion for Summary
Judgment). Although the former is probably quicker, the latter
allows your attorney to build a case against the plaintiff through
the discovery process, thereby allowing you to bring a counterclaim
or to "SLAPP back," an option that has resulted in awards of
millions of dollars (up to even $86,500,000 in one case!) against
SLAPP suit plaintiffs. SLAPP back suits may be grounded on legal
theories of malicious prosecution; abuse of process; violation of
constitutional rights; violation of civil rights (if a government
brought the original SLAPP suit); intentional or negligent
infliction of emotional distress; defamation; or other claims.
Another way to put the pressure on plaintiffs to discontinue
frivolous suits -- while realizing that there is a risk of
exacerbating the legal claims against you -- is to mobilize on the
public relations front: organizing media exposs, demonstrating or
boycotting against the business will cause the business to rethink
whether the benefits of litigation outweigh the costs of a bad
commercial reputation. Likewise, going to the media alleging
interference with one of the most-valued of American rights --
constitutionally-guaranteed freedom of expression -- stands a good
chance of receiving attention by the press. Nevertheless, while you
can consider these alternatives, again, they may be risky in actual
practice and should not be attempted without thorough debate within
your own organization and solid legal advice.
Don't Be Deterred!
SLAPP suits are losers, rarely successful, especially when citizens
have anticipated them and taken proper precautions. Courts are
becoming more and more sensitive to the chilling effect of SLAPP
suits on citizens who are standing up for the environmental ideals
in which they believe...and are coming down hard financially -- to
the tune of millions of dollars in penalties -- on those that use
the legal system to harass citizens into silence.
Prepared January 1994 by:
Cameron Davis, National Wildlife Federation (313) 769-3351
Great Lakes Natural Resource Center
506 E. Liberty, 2d Floor
Ann Arbor, MI 48104
David White, National Wildlife Federation (404) 876-8733
Southeastern Natural Resource Center
1401 Peachtree Street, N.E., Suite 240
Atlanta, GA 30309
The authors wish to thank George Pring and Brandee DeFalco for their
assistance in reviewing this guide.
George W. Pring and Penelope Canan, "Symposium: Strategic Lawsuits
Against Public Participation," 12 Bridgeport L. Rev. 937 (Summer
1992). This article is a comprehensive review of SLAPP suits and was
relied upon extensively in the formulation of this guide. Professor
Pring can be contacted at: the SLAPP Project, University of Denver,
College of Law, 1900 Olive Street, Denver, CO 80220.
7 Pace Envl. L. Rev.1 (Fall 1989). This issues of the Pace
Environmental Law Review is the seminal work on SLAPP suits and
should be examined should the reader find himself or herself in a
SLAPP suit situation.
Tanner v. Decom Medical Waste Systems, Inc., No. 892-107, Cir. Ct.,
St. Louis, Mo. (verdict May 17, 1991).
Dwight H. Merriam and Jeffrey A.Benson, "Identifying & Beating a
Strategic Lawsuit Against Public Participation," Duke Env. Law &
Policy Forum, Vol. III (1993). This article was used extensively in
the formulation of this guide and is also an excellent source of
additional reference for the interested reader.
Sample Indemnification Provision
The following is a sample indemnification clause that may be used in
developing a similar clause for an affiliate constitution or, more
appropriate, affiliate by-laws. This is a sample only; the affiliate
should ensure that its own clause is custom-fitted to the
organization's own needs.
The (organization) shall indemnify, as fully as is possible under
(the state in which the organization is incorporated) law, any
person who is made or threatened to be made a party to any
threatened, pending, or completed proceeding, whether civil,
criminal, administrative, or investigative, and whether formal or
informal. This indemnification covers such persons acting as a
director or officer of the (organization), against expenses,
attorney fees, judgments, fines, penalties, and amounts paid in
settlement which that person actually and reasonably incurs in
such matter or its appeal. These indemnification rights are not
exclusive of any other rights which such person may have. No
repeal or amendment of this provision shall adversely affect any
person's right to indemnification with respect to acts or
omissions occurring before the repeal or modifications.
Your local law school library or bar association should be able to
point you in the right direction to obtain copies of the following.
States Where Anti-SLAPP Laws Are In Effect
California California Code of Civil Procedure Section 425.16,
effective January 1, 1993. The California law extends protection to
any act performed in connection with a public issue, including
written or oral statements made before any official proceeding or in
a public forum. The law includes a legislative finding that "there
has been a disturbing increase in lawsuits brought primarily to
chill the valid exercise of the constitutional rights of freedom of
speech and petition." The law permits the initial filing of claims
but subjects them to a special motion to strike unless the court
determines the plaintiff has established a substantial probability
of prevailing on the claim. The law contains timetables for hearings
on those motions and provides for stays of discovery proceedings
until such motions are decided. Defendants who prevail on the
special motion to strike are entitled to recover attorney fees and
costs. See also, Cal. Civ. Code Sec. 47(b).
New York New York Assembly Bill 4299, effective August 3, 1992. The
New York law offers both limited immunity and damage awards to SLAPP
targets. It also offers expedited hearings for certain motions in
"actions involving public participation." The protection of the New
York law is triggered when a person who has applied for aa permit,
zoning change, lease, permit, license, etc., sues another based on
efforts to "report on, comment on, rule on, challenge or oppose" the
application or permission. See also, Civil Rights Law Sec. 70-a and
76-a; Civil Practice Rule 3211(g) and 3212(h), eff. Jan. 1, 1993.
Washington Revised Code of Washington, Section 4.24.510, effective
1989. Washington has enacted a statute based on immunity from suit
when the activity involves communication to a governmental agency.
The statute states: "A person who in good faith communicates a
complaint or information to any agency of federal, state or local
government regarding any matter reasonably of concern to that agency
shall be immune from civil liability on claims based on the
communication to the agency."
When a defendant establishes that the suit brought against him or
her is based upon a good faith communication to the agency, (s)he is
entitled to costs and fees from the party who brought the suit. The
Washington statute also authorizes the agency or attorney general to
intervene in the suit on behalf of the defendant. States Where
Anti-SLAPP Legislation Has Been Proposed But Not Passed
Connecticut Raised Bill 7374 (1991, failed); House Bill 1026, Senate
Bill 182, Senate Bill 248 (1993, failed).
Florida House Bill 759, Senate Bill 2188 (1992, failed); House Bill
185, Senate Bill 70 (1993, failed).
Maryland 1992 Md. H. 486, 398 Legislative Session, 1992 Regular
New Jersey Senate Bill No. 3136 (1991, failed); Assembly Bill 190
(1992, failed); and 1993 (pending).
Rhode Island 1992 R.I. S. 2005, 1992 Regular Session;
Texas House Bill 7266 (1993, failed).
Virginia Senate Bill 424 (1992, 1993, failed).
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