Environment in Crisis

Lawsuits Against Participation

What are they?
Legal Mechanisms


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Several US states have responded to the epidemic of SLAPP cases with legislation aimed at making it more difficult for developers to sue. Californian Senator, Bill Lockyer, a supporter of such legislation argued that "Our courts are being used by wealthy and special interests to prevent citizens from speaking out on legitimate public controversies." (Bishop 1991) California, New York, Washington, Nevada, Florida, Texas and several others have all introduced SLAPP-deterring legislation. In New York, for example, people filing lawsuits have to show that the person being sued acted in malice and with "reckless disregard for the truth". In a Californian Supreme Court case in 1995, the court upheld a ruling that citizens can make comment and give criticism during formal reviews authorised by law, without fear of libel suits, no matter what their motivation.

In countries where the constitution does not guarantee the right of citizens to petition government it is more difficult for state or provincial governments to enact legislation to discourage SLAPP suits. However Stephen Keim, Barrister-at-Law, argues that in Australia there is an implied protection of free speech in the Commonwealth Constitution that could be used to make it more difficult for SLAPP writs to operate. He cites a 1992 case (Nationwide News Pty.Ltd vs. Wills) in which the judge said that the doctrine of representative government which the Constitution incorporates "presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf." Keim believes that there is scope for test cases to explore the potential of this doctrine of representative government as a way of summarily dismissing suits that offend against the citizens' right to communicate among themselves on matters of public importance.

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Another option is for people who are targeted for SLAPPs to SLAPP-back (or sue the developers in return). Grounds for such cases in the US can include abuse of legal process, malicious prosecution and "interference with the exercise of constitutional rights of free expression." (Costantini and Nash 1991) Some people in the US have won large amounts of money in this way. In Australia, the torts of abuse of process and malicious prosecution are available for this purposebut such responses depend on the willingness and financial ability of those involved to use them. It really requires special legislation to deal with the phenomenon of SLAPPs in a more integrated and comprehensive way.

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Additional Material

Katherine Bishop, 'New Tool of Developers and Others Quells Private Opposition to Projects', New York Times, No. 26 April (1991).

Diana Jean Schemo, 'Silencing the Opposition Gets Harder', New York Times, 2 July 1992.

George W. Pring, Penelope Canan and Vicky Thomas-McGuirk, 'SLAPPS: A New Crisis and Opportunity for the Government Attorney-part 1', National Environmental Enforcement Journal, No. April (1994)

Anon., 'Court Gives New Protections to Critics of Development', Los Angeles Times, 24 March 1995

Kim Goldberg, 'SLAPPs Surge North: Canadian Activists Under Attack', The New Catalyst, Vol. 25 (Winter 1992/3) , pp. 1-3.

Stephen Keim, 'Dealing with SLAPP Suits', Australian Environmental Law News, Vol. 2, No. June (1994) p. 44.

Edmond Costantini and Mary Paul Nash, 'SLAPP/SLAPPback: The Misuse of Libel Law for Political Purposes and a Countersuit Response', Journal of Law and Politics, Vol. VII (1991) , p. 425.

Officer Must Pay Attorneys Fees Under "Anti-SLAPP" Law, ACLU News, January/February 2000.

Chris Tollefson, Canada needs Anti-Slapp Legislation, Taiga News, 21, June 1997.

Robert D. Richards, Keep free speech free: punch back at SLAPP, PG News, February 10, 1999.

Eric Kirk, Slapped? Slapp Back, Civil Liberties, Spring 1998.

Gregory Kafoury, Activist Awarded $200,000 in SLAPP-Back Suit, Oregon Peace Worker,

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© 2003 Sharon Beder