Multi-million dollar law suits are being
filed against individual citizens and groups for circulating petitions,
writing to public officials, speaking at, or even just attending,
public meetings, organising a boycott and engaging in peaceful
demonstrations. Such activities are supposed to be protected by
the First Amendment to the US Constitution but this has not stopped
powerful organisations who want to silence their opponents.
These cases are part of a growing trend
which began in the 1970s and was a response to the growing numbers of
citizens who were speaking up about environmental and other social issues.
The law suits have been labelled "Strategic Lawsuits Against Public
Participation" or SLAPPs by University of Denver academics Penelope
Canan and George Pring, who have been studying such suits for more than
a decade with the help of funding from the US National Science Foundation.
They began their research after they noticed an increasing number of
environmentalists were being named as defendants in large civil damage
This trend is now spreading to other
countries. For example in Canada the transnationals MacMillan Bloedel
Ltd and Fletcher Challenge have between them sued over 100 individuals
and four community and environmental organisations who opposed the logging
of an ancient rainforest on Vancouver Island. In Britain, in a highly
publicised case McDonald's, one of the largest companies in the world
sued two unemployed activists, for distributing pamphlets critical of
Canan and Pring define a SLAPP as being
a civil court action which alleges that injury has been caused by the
efforts of nongovernment individuals or organisations to influence government
action on an issue of public interest or concern. They found that "SLAPPs
are filed by one side of a public, political dispute to punish or prevent
opposing points of view." Of course people using SLAPPs in this way
cannot directly sue people for exercising their democratic right to
participate in the political process so they have to find technical
legal grounds on which to bring their cases. Such grounds include defamation,
conspiracy, nuisance, invasion of privacy or interference with business/economic
Such cases seldom win in the courts.
The charges often seem extremely flimsy and the damage claims outrageously
large. Most are dismissed by the courts and 77% of those that are heard
by the courts are won by the people being sued. Less that ten percent
of such cases in the USA result in a court victory for the filer of
the action. Edmond Costantini and Mary Paul Nash observe in their article
on the misuse of libel law for political purposes in the Journal
of Law & Politics: "One would be hard-pressed to find another
area of the law in which so overwhelming a proportion of defendants
brought into court are eventually vindicated." However companies and
organisations taking this legal action are not doing so in order to
win compensation. Rather their aim is to harass, intimidate and distract
their opponents. They 'win' the court cases when their victims "are
no longer able to find the financial, emotional, or mental wherewithal
to sustain their defense." They win the political battle, even when
they lose the court case, if their victims and those associated with
them, stop speaking out against them.
One trial judge pointed out:
The conceptual thread that
binds [SLAPPs] is that they are suits without substantial merit
that are brought by private interests to "stop citizens from exercising
their political rights or to punish them for having done so"...The longer
the litigation can be stretched out, the more litigation that can be
churned, the greater the expense that is inflicted and the closer the
SLAPP filer moves to success. The purpose of such gamesmanship ranges
from simple retribution for past activism to discouraging future activism.
The cost to a developer is part of the
costs of doing business but the cost of a court case could well bankrupt
an individual or an environmental group. In this way the legal system
serves best, those who have large financial resources at their disposal,
particularly corporations. In 1983 the US Supreme Court stated in one
such SLAPP case that a lawsuit may be used "as a powerful instrument
of coercion or retaliation" and no matter how flimsy the case the defendant
"will most likely have to retain counsel and incur substantial legal
expenses to defend against it..."
Such a case takes an average of three
years and even if the person being sued wins it can cost tens of thousands
of dollars in legal fees. Personal and emotional stress, disillusionment,
diversion of time and energy, and even divisions within families, communities
and groups can also result. For example George Campbell organised his
neighbours to protest against the expansion of an airport near their
homes in Worcester, Massachusetts. After he was threatened with a lawsuit
from the city council for $1.3 million he thought he was going to loose
everything and ended up in hospital as a result of the stress. The council
dropped the suit a few weeks later.
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,
April (1994), p. 3.
George W. Pring and Penelope Canan,
'"SLAPPs""Strategic Lawsuits Against Public Participation"
in GovernmentDiagnosis and Treatment of the Newest Civil
Rights Abuse' in Civil Rights Litigation and Attourney Fees
Annual Handbook, Clark Boardman, 1993.
Diana Jean Schemo, 'Silencing the Opposition
Gets Harder', New York Times, 2 July 1992.
Peter Nye, 'Surge of SLAPP Suits Chills
Public Debate', Public Citizen (Summer 1994).
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
Cameron Davis and David White, 'The
Unslapped: A Primer for Protecting You and Your Affiliate Against SLAPP
Suits', elaw.public.interest (January 26 1994).
Catherine Dold, 'SLAPP Back!', Buzzworm:
The Environmental Journal, Vol. IV, No. 4 (1992) , p. 36.
The First Amendment Project - What
Sierra Legal Defence Fund - SLAPP
John Wilmer, Esq. What
is a SLAPP Lawsuit?, Zero
Waste America, 16 December 1996.
Back for Democracy: An Interview with George Pring,
Multinational Monitor, 19(3) May 1998.