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 cases.

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 McDonald's.

Definition

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 expectancy.

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Purpose

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.

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Costs

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.

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Additional Material

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 Government—Diagnosis 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 (1991).

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 are SLAPPs?

Sierra Legal Defence Fund - SLAPP Suits

John Wilmer, Esq. What is a SLAPP Lawsuit?, Zero Waste America, 16 December 1996.

SLAPPing Back for Democracy: An Interview with George Pring, Multinational Monitor, 19(3) May 1998.

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