Saturday, November 13, 2010

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.

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