Winners Are Losers Too: The Paradox of the “Successful” SLAPP Defense

In discussing my research with colleagues and students, the first the first question I’m often asked is whether the filer can actually win in such a flagrant misuse of the legal system. After all, if the target is exercising a constitutionally protected right, how is there even a case to be made? The answer, unbeknownst to the asker expecting a simple “yes” or “no,” is complicated and hinges upon the definition of the word “win.”

Indeed, as we’ve seen in the section about the transformations that occur in a SLAPP suit, the target or his attorney must recognize the case as a SLAPP suit and file a motion to dismiss. Doing so is the closest one can get to “winning” a SLAPP case – not counting states that have “SLAPP-back” legislation, where the target can actually recover “reasonable attorney’s fees” and the filer can be fined.

Should the target not file a motion to dismiss the case on the basis of it being a violation of the First Amendment, however, the case can proceed to court and be fought on the technicalities of the injury claim. The longer the case drags on, the more damage – financial and emotional – is done to the target. Most filers, in fact, do not expect to win in the end (Pring & Canan, 1996); they hope to win a war of attrition where the target will cease her protests and be silenced before the case even comes to a conclusion. In fact, it’s been shown that 83% of targets win in cases where the dispute is seen through to a ruling (Schwarz, 2007, p. 72). But, regardless of success in court, targets have noted that financial and emotional stresses of being exposed to a protracted legal proceeding have been contributing factors to divorces and bankruptcies. Thus, even if the case is seen through to the end and the court finds in favor in the target, can we actually say that she has won?

And while harm to the target is certainly the most obvious malady attributable to a SLAPP suit, it’s possible that the most insidious harm is not done to those directly involved with the case, but to those who witness the case from a distance and are intimidated into political silence for the rest of their lives. In the case of a Denver real estate developer filing a SLAPP suit against residents who protested a city council’s decision to zone 92 acres of land for new homes, the target, Betty Johnson certainly did feel the deleterious effects of being “SLAPPed” firsthand, but the comments of other members of the community are sobering of the wide radius of the SLAPP’s shockwave. One resident confessed, after the case, “I won’t circulate another petition, and my husband wants me to get out of [community issues]” (Pring & Canan, 1996). Another resident noted that, while he might participate anonymously in policy issues, he would be loath to ever put “his name on anything” again after witnessing Johnson’s struggles (Id.). One might argue that this blow to democracy cost more than any strife felt by the target herself.

The picture gets darker if we consider the societal inequities highlighted by these suits that are predicated on the filer having more funds available (by several orders of magnitude) than the average target. It’s one thing for a person of means to be SLAPPed, but it’s another when we consider the “unequal distribution of legal services between the upper and lower classes” (Schwarz, 2007). This concept, in general, was highlighted by President Jimmy Carter in 1978 when he said that “90% of lawyers serve 10% of the people. We are over-lawyered and under-represented” (Schwarz). If these cases can bankrupt an upper-middle-class person, what hope do those of lower socioeconomic classes hope of gaining fair access to legal defense against SLAPP suits?

So, can a person “win” a SLAPP suit that goes to court? Well his case will be successful about 83% of the time. That is, he will be successful in avoiding the average injury claim of $9-million dollars (Id.). But the great paradox here is that, even in these cases, the target – or anyone who witnesses the case – is also the loser. The equation changes, however, when we consider the fact that states can enact anti-SLAPP or SLAPP-back legislation to dissuade companies from filing SLAPP suits. In the coming section, we’ll look at this legislation and how it has helped to broaden and redefine SLAPP suits from Pring & Canan’s original classification.

Metamorphoses: The Mechanics of Traditional SLAPP Suits

Given that the motivation of many SLAPP suits is to stem reputational damage resulting from public speech, it makes sense for the “filer” – the title Pring and Canan bestow upon the plaintiffs in SLAPP suits – to try to take the discussion with the “target” – the defendant – out of the public sphere, where it can be subjected to reason and scrutiny. Thus, the mechanics of the SLAPP suit serve to create this transformation: moving a case from a public, political discussion to a private, judicial dispute over technicalities (Pring & Canan, 1996, p. 10).

Traditional SLAPP suits, those that seek to curtail citizens’ rights to petition government, by definition, start out being public and political. A citizen will request governmental consideration on an issue of public interest and, in the process, come into opposition with another party’s interests (ibid). Let’s consider our cell tower example. At the zoning board meeting, you publicly asked your municipality to deny the wireless provider the permit to build its cell phone tower. Your desire – for the tower not to be built – is in direct opposition with the provider’s – for the tower to be constructed. It’s the township’s role to come to a decision. To this point, the system is functioning properly.

But when the wireless provider decided that it would be more efficacious and efficient to file the defamation suit against you, thereby attempting to interfere with your right to petition government, initiating the SLAPP suit, it also caused a number of metamorphoses to the nature of the dispute (ibid):

1) dispute transformation - the dispute changed from being political to being legal. This is achieved by “characterizing the targets’ conduct as some technical, legalistic injury (such as libel, business interference, or conspiracy)” (ibid).

2) forum transformation – moved the dispute from the public view, where it can be seen through to resolution, to a “private judicial one (where only technicalities can be addressed)” (ibid).

3) issue transformation – changed the basis of the case from potential injuries to the target (e.g. whether or not the cell tower is constructed) to harms done to filer (defamation, business interference, etc.) (ibid).

All of these changes are purely advantageous to the filer because, in addition to the intimidation caused by the SLAPP suit, the discussion as to what should be done vis-à-vis the matter in contention is put aside in favor of analyzing how the target may have harmed the filer.

The final stage of the SLAPP lifecycle is the most crucial. Should the target’s attorney recognize the case as an attempt to stifle constitutionally protected speech, the case will typically be dismissed (ibid). In these cases the target’s attorney has successfully retransformed the case from its private, judicial state back to its public, political existence. If the target, however, does not recognize that he is embroiled in a case meant to unconstitutionally curtail his free speech, and proceeds to engage on “the merits” of the case, he will likely “lose” – we’ll cover the definitions of “win” and “lose” vis-à-vis SLAPP suits later. In these cases, the target, by not being sensitive to the fact that a SLAPP was occurring, failed to retransform the case, and will likely pay dearly for it.

As we can see, one’s success in fending off SLAPP suits is contingent upon her recognized that she is, in fact being SLAPPed. If that doesn’t happen, the case can and will go to court, where the parties will engage on the particulars of the defamation claim. In discussing my research with friends and colleagues, the most common question about SLAPP suits is whether the filer can “win,” or if they’re ever “successful.” In the coming section, we’ll consider how the answer to this question is complicated, how a win can actually be a loss, at both the case level and at the macro level.

SLAPP Suits: Origin of the Term

Here's the first chunk of reasoning for my paper. If you have any comments, please do feel free to send!

Even though SLAPP suits, Strategic Lawsuits Against Public Participation, in the American judicial system can be traced back as far as 1802 (Harris v. Huntington), just after the American Revolution, these cases were not formally identified as discrete entities until 1983, when lawyer George Pring and sociologist Penelope Canan began a groundbreaking study that culminated in their work, SLAPPs: Getting Sued for Speaking Out (1996).

While the definition of SLAPP suits has been broadened by subsequent legislation, the types of suits of that Pring and Canan identified in their original study have a very narrow scope. They noticed a particularly insidious subset of suits within a larger set of “intimidation suits” and tactical lawsuits. These cases, often filed by businesses against individuals or groups, attempted to use the intimidating qualities of lawsuits – cost, emotional distress, time commitment – to dissuade citizens from exercising their right “to petition the Government for a redress of grievances,” a liberty guaranteed by the Petition Clause of the First Amendment. Further defining the scope of their study, Pring and Canan (1996) trace the evolution of a suit they would deem to be a SLAPP: “[These suits] (1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims) (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance” (209).

Pring and Canan provide a wide array of examples of their conception of SLAPP suits, but I might offer a more modern example. Consider being invited to a meeting of your township’s zoning board to discuss variances to zoning policies requested by individuals and businesses in the area. One case on the docket is that of a cellular phone service provider seeking to install a prominently visible cell tower near your residence. The members of the board open the meeting up to concerns by those attending, and you vehemently exercise your right to protest the construction of the tower. Shortly after the meeting, you are served with a lawsuit, initiated by the cellular provider, accusing you of “libel” and “business interference” – the suit seeks damages of $500,000. While you’ve merely exercised your right to petition government on a matter of public interest, you will now have to shoulder the cost and inconvenience to defend that right. And while this case may sound largely hypothetical, thousands like it have occurred since the resurgence of SLAPP suits in the 1970s (Pring & Canan, 1996, xi).

Even if you were to “win” this suit, most SLAPP suits amount to “Pyrrhic victories” (Gordon v. Marrone, 1992) that result in people “who have witnessed such suits…choos[ing] in the future to stay silent” (ibid). J. Nicholas Colabella, a New York judge, has perhaps the most cogent quote on the matter of SLAPP suits: “Short of a gun to the head, a greater threat to First Amendment expression can hardly be imagined” (ibid).

Thanks to Pring and Canan these suits have been identified and can be dealt with accordingly, as unconstitutional attempts to curtail free speech, rather than as merited defamation suits. As we’ll come to see, the definition of these suits seems to have been broadened since their initial discovery and identification.

Research Intention

First, a statement of research intention: I became interested in SLAPP suits tangentially, while studying cases where corporations initiated litigation against Internet posters who wrote negative reviews of their businesses. The companies claimed injuries such as libel, and sought exorbitant damages from the cases' "targets." The goal was clearly to limit the business's reputational damage, and to deter others from writing similar reviews in the future. In the course of the research, I learned that similar tactical lawsuits have been around for a long time, significantly predating the Internet.

So, for this paper, I've decided to trace the history of the SLAPP suit, to learn how it evolved from its pre-Internet state to its current manifestation on the Web, and to try to understand how its uses may change over time as the use of technology increases. I'll also look at some suggested remedies for SLAPP suits in the "physical" world and consider whether they might work when applied to Internet-based cases.

Blogging my research

So I have a bad habit of abandoning my blog for semi-long periods of time randomly - sorry for this! But, as I've claimed many times in the past, only to disappoint you time and time again: I've changed. I'm a new blogger. I will not walk out on you again, if you'll consider taking me back.

Great! Now that we're back together, I'd like to tell you about something I'm working on. I'm working on some research about SLAPP suits - you maybe remember that I've written about them before. But this time I'm working on a scholarly piece.

As I do my research, I'm going to try to blog everyday about what I'm reading and what I'm learning. Indeed, I'm going to try to write my paper in chunks, in blog posts that I can later cohere into something, hopefully, usable.

I would love it if you would comment on the posts: any questions you may have, any blatant logical fallacies I've indulged in, or anything you think I got wrong. This would be immensely helpful to me, and I would welcome the discussion!

Thanks for working through this paper with me, and I hope to hear from you!