Pleading Ignorance on SLAPP aka SHUTUP Lawsuits

June 9th, 2010. By Kristine B

I recently came across an interesting article in The New York Times. The article was about a phenomenon known as SLAPP: Strategic Lawsuit Against Public Participation. Since the Internet has made SLAPP lawsuits more common, I thought I’d discuss them and their implications in this week’s Pleading Ignorance. 

At their heart, SLAPP lawsuits are designed to intimidate and censor critics. The idea is that a company, say MegaCo, wants to stop critics from saying negative things publicly about the company. MegaCo would file lawsuits against those individuals who speak out against the company in an attempt to silence them. 

Whether or not MegaCo would win the lawsuit is of no importance. Faced with mounting legal bills and the strain of a lawsuit, the defendant—often an individual with no legal team or financial resources to fall back on—abandons the criticism. Whether or not the criticism is valid is also of no importance. The important thing is that MegaCo has prevented someone from criticizing the company and has probably discouraged other critics from coming forward. 

In many cases, MegaCo and the defendant won’t even see the inside of a courtroom. Usually, companies like MegaCo send a strongly-worded warning letter from their legal department, threatening legal action if the criticism isn’t taken back. Because the plaintiff is usually an individual who has no desire to face a lawsuit, the criticism is quickly abandoned. 

Critics of SLAPP lawsuits say they violate free speech and amount to censorships. Some states, including California, have statutory protections against SLAPPs. 

What is so dangerous about these lawsuits is they are not intended to win on their merits. They are only intended to stop people from using their right to freedom of speech by scaring them into silence. The difference between a SLAPP lawsuit and a legitimate defamation lawsuit is that the SLAPP lawsuit alleging defamation has no merit. That means the claimant is simply trying to shut someone up. 

But, the line between defamation and SLAPP can be thin. 

How could SLAPP affect you? Well, anyone who writes on a blog, tweets, uses Facebook or speaks out against corporations or individuals are potential SLAPP defendants. If you have a gripe with your plumber and take it out on the Internet, you could face a lawsuit. Angry with your mechanic? You could face a lawsuit, depending on what you say about him. 

People who write on the Internet have to be careful about what they say, or they could become a SLAPP defendant. If you do have something negative to say, make sure you have all the facts, first. Also ensure you have documents to support your opinion. Even though you may be protected by the First Amendment, the threat of a lawsuit—or an actual lawsuit—is a scary possibility. 

According to The Wall Street Journal (blogs.wsj.com, 06/01/10), Congress is considering passing its own anti-SLAPP laws. The bill would allow a defendant who believes the lawsuit against him falls under SLAPP to seek to have the suit dismissed. If the suit is dismissed, the plaintiff would have to pay the defendant’s legal fees. 

Anti-SLAPP legislation would be good news if it went through. The problem is that for many big companies, the legal fees associated would be chump change, so there’s still no incentive for the suit not to be filed. Furthermore, since many SLAPP claims don’t actually turn into lawsuits—as mentioned previously, they often start and stop with a letter from the legal department—there’s no way of prevent large companies from committing their own censorship and scaring people with the threat of a lawsuit. 

But, I don’t want to leave you on a down note, so here’s an interesting fact: according to an interview on National Public Radio (04/02/10), SLAPP was the runner-up in the contest to pick an acronym for these types of lawsuits. The winner was First Amendment Representation Torts (I’ll let you figure out the acronym yourself) but the professors charged with picking the acronym went with SLAPP instead. I can’t say I blame them.

Tags: Defamation, first amendment, freedom of speech, SLAPP

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