Saturday, November 20, 2010

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.

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