A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.[1]
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims.
SLAPPs take various forms. The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libel dates to the early 17th century and (unusual in English law) is reverse onus, meaning, once someone alleges a statement is libelous, the burden was on the defendant to prove that it is not. The Defamation Act 2013 removed most of the uses of defamation as a SLAPP in the United Kingdom by requiring the proof of special damage. Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory. A common feature of SLAPP suits is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.
Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants' costs even if this clearly costs more to the plaintiffs.
Some political libel and forum shopping incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little academic concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.
One of the first cases in Canada to be explicitly ruled a SLAPP was Fraser v. Saanich (see [1999] B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities.
Following the decision in Fraser v. Saanich, the Protection of Public Participation Act went into effect in British Columbia in April, 2001. The legislation was repealed in August, 2001. There was extensive debate on its merits and the necessity of having hard criteria for judges and whether this tended to reduce or increase process abuse. The debate was largely formed by the first case to discuss and apply the Protection of Public Participation Act (PPPA), Home Equity Development v. Crow.[5] The defendants' application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. While it was not the subject of the case, some felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project, and that the Act was therefore ineffective in this case.
Since the repeal, BC activists especially the BCCLA have argued repeatedly for a broad understanding of SLAPP and a broad interpretation of judicial powers especially in intervener applications in BC and other common law jurisdictions and when arguing for new legislation to prevent SLAPPs. The activist literature contains extensive research on particular cases and criteria. The West Coast Environmental Law Association agrees and generally considers BC to lag other jurisdictions [2]. So do some BC lawyers, again listing specific cases [3].
In Ontario, the decision in Daishowa v. Friends of the Lubicon (see [1996] O.J. No. 3855 Ont. Ct. Gen. Div.) (QL) was also instructive on SLAPPs. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.
By 2010, the Ontario Attorney-General considered SLAPP a major problem and issued a major report on them [4]. However, a year later nothing substantial had changed, according to commentators [5]. In June, 2013, the Attorney General introduced legislation that was intended to implement the recommendations of the report.[6]
Québec's then Justice Minister, Jacques Dupuis, proposed an anti-SLAPP bill on June 13, 2008. [7] The bill was adopted by the National Assembly of Quebec on June 3, 2009. As of September 2013, Quebec's amended Code of Civil Procedure is the only anti-SLAPP mechanism in force in Canada.
This bill was invoked in Ontario (and then Supreme Court of Canada docket 33819) in the case of Les Éditions Écosociété Inc., Alain Deneault, Delphine Abadie and William Sacher vs. Banro Inc., in which the publisher Écosociété pled (supported by the BCCLA[6]) that it should not face Ontario liability for a publication in Quebec, as the suit was a SLAPP and the Quebec law explicitly provided to dismiss these. As of November 15, 2011, the judgement was still pending, having been heard in the Court in March of 2011.
The Quebec law is substantially different in structure than that of California [7] or other jurisdictions, however as Quebec's Constitution generally subordinates itself to international law, the International Covenant on Civil and Political Rights applies. That treaty only permits liability for arbitrary and unlawful speech. The ICCPR has also been cited, in the BC case Crookes v. Newton, as the standard for balancing free speech versus reputation rights. The Supreme Court of Canada in October 2011, ruling in that case, neither reiterated nor rescinded that standard.
Twenty-eight states, the District of Columbia, and Guam have enacted statutory protections against SLAPPs.[8][verification needed] These states are Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota,[9]Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack protections.
There is no federal anti-SLAPP law. The extent to which state laws apply in federal courts is unclear, and the Circuit courts have reached different conclusions. The United States Court of Appeals for the Ninth Circuit has allowed California litigants to use their state's special motion in federal district courts located in California, in cases where the court is hearing at least one California state law claim through the doctrine of supplemental jurisdiction.[10] However, the United States Court of Appeals for the First Circuit has held that the Massachusetts anti-SLAPP law, as a mere matter of procedure, does not apply in federal courts.[11]
It has been argued that the lack of uniform protection against SLAPPs has encouraged forum shopping; proponents of federal legislation have argued that the uncertainty about one's level of protection has likely magnified the chilling effect of SLAPPs.[12]
In December 2009, Rep. Steve Cohen (D–Tennessee) introduced the Citizen Participation Act in the U.S. House.[13] This marks the first time the Congress has considered federal anti-SLAPP legislation, though the Congress enacted a law on the closely related issue of libel tourism.[14] Like many state anti-SLAPP laws, H.R. 4364 would allow the defendant of a SLAPP to have the suit quickly dismissed and to recover fees and costs.
California has a unique variant of anti-SLAPP legislation which has led a significant volume of SLAPP litigation in that state. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone. The rest of the states combined had about 341, of which Massachusetts accounted for 176, raising the question whether California's SLAPP statute is accomplishing its primary objective of reducing costly litigation.[15] The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense.[3] It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.
To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on claims related to constitutionally protected activities, typically First Amendment rights such as free speech, and typically seeks to show that the claim lacks any basis of genuine substance, legal underpinnings, evidence, or prospect of success. If this is demonstrated then the burden shifts to the plaintiff, to affirmatively present evidence demonstrating a reasonable probability of succeeding in their case by showing an actual wrong would exist as recognized by law, if the facts claimed were borne out.
The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case has at least a basis of visible legal merit and is not merely vexatious, prior to discovery.
If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.[16]
California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute.[17] Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.[18]
The SLAPP penalty stands as a barrier to access to the courts by providing an early penalty to claimants who seek judicial redress. In recent years, the courts in some states have recognized that enforcement of SLAPP legislation must recognize and balance the constitutional rights of both litigants. It has been said:
Since the Magna Carta, the world has recognized the importance of justice in a free society. “To no one will we sell, to no one will we refuse or delay, right or justice.” (Magna Carta, 1215.) This nation’s founding fathers knew people would never consent to be governed and surrender their right to decide disputes by force, unless government offered a just forum for resolving those disputes.[19]
The right to bring grievances to the courts, in good faith, is protected by state and federal constitutions in a variety of ways. In most states, the right to trial by jury in civil cases is recognized. The right to cross-examine witnesses is fundamental to our judicial system. Moreover, the first amendment protects the right to petition the government for a redress of grievances. The “right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”[20] Because “the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights,’ ... the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values.[21] This balancing question is resolved differently in different states, often with substantial difficulty.[22]
In Palazzo v. Alves, the Supreme Court of Rhode Island stated:
By the nature of their subject matter, anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard with respect to issues of public concern. On the other hand, it is important that such statutes be limited in scope lest the constitutional right of access to the courts (whether by private figures, public figures, or public officials) be improperly thwarted. There is a genuine double-edged challenge to those who legislate in this area.[citation needed][23]
The most challenging balancing problem arises in application to SLAPP claims which do not sound (give rise to a claim) in tort. The common law and constitutional law have developed in the United States to create a high substantive burden to tort and tort-like claims which seek redress for public speech, especially public speech which addresses matters of public concern. The common law in many states requires the pleader to state accurately the content of libelous words. Constitutional law has provided substantive protection which bars recovery against a first amendment defense except upon clear and convincing evidence that there has been deliberate or reckless falsehood. For this reason, ferreting out the bad faith SLAPP claim at an early stage of litigation should be accomplished with relative ease. Extension of the SLAPP penalties to factually complex cases, where the substantive standard of proof at common law is lower presents special challenges.
A Minnesota Supreme Court case, Middle-Snake-Tamarac Rivers Watershed Dist. v. Stengrim, 784 N.W.2d 834 (Minn. 2010) establishes a two-step process to determine whether SLAPP procedure should be applied. The decision arises in the context of an effort to enforce a settlement agreement between a local government and an opponent of a flood control project. The landowner had accepted a significant monetary settlement in settlement of his opposition to land acquisition. The landowner agreed as part of the settlement to address no further challenges to the project. When the local government sued the landowner for breach of settlement, the landowner contended that enforcement of the settlement was a strategic lawsuit against public participation. The Supreme Court rejected that claim and affirmed the District Court's denial of SLAPP relief, holding “The District Court properly denied a motion to dismiss where the underlying claim involved an alleged breach of a settlement agreement that potentially limited the moving party’s rights to public participation.” The Supreme Court explained:
Preexisting legal relationships, such as those based on a settlement agreement where a party waives certain rights, may legitimately limit a party’s public participation. It would be illogical to read sections 554.01-.05 as providing presumptive immunity to actions that a moving party may have contractually agreed to forgo or limit.
Under the Minnesota approach, as a preliminary matter, the moving party must meet the burden of showing that the circumstances which bring the case within the purview of SLAPP protection exists. Until that has been accomplished, no clear and convincing burden has been shifted to the responding party.