Tuesday, November 16, 2010

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.

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