Responding to Strategic Lawsuits Against Public Participation (SLAPPs)

SLAPP stands for "Strategic Lawsuit Against Public Participation." It refers to a lawsuit filed in retaliation for speaking out on a public issue or controversy. You might be "SLAPPed" for actions such as posting a blog entry, posting a comment on another person's blog, writing a letter to the editor of a newspaper, testifying before the legislature, reporting official misconduct, or circulating a petition. Often, SLAPPs are brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions.

Lawsuits targeting individuals who post anonymously on the Internet, usually because their posted messages criticize the actions of public figures or corporations, are sometimes called cyberSLAPPs. Like a regular SLAPP, a cyberSLAPP aims at chilling free speech by intimidating critics with the prospect of defending an expensive lawsuit. But it also often aims at uncovering the identity of the anonymous critic. For more information on the court procedures a lawyer or party can use to identify an anonymous Internet speaker, see Potential Legal Challenges to Anonymity.

Most SLAPPs ultimately would fail if litigated fully, but the SLAPP filer doesn't usually intend to do so. As previously mentioned, the point of a SLAPP is to intimidate and silence the target through the threat of an expensive lawsuit. Although the First Amendment to the U.S. Constitution protects freedom of speech, the U.S. legal system generally gives the benefit of the doubt to a party bringing a lawsuit until the fact-finding stage, and a winning defendant is not usually entitled to recover attorneys' fees to cover the expense of legal defense (as in some other countries). This means that, even if the claim ultimately fails, the process of defending against a SLAPP through the legal system can be a daunting and expensive prospect for many individuals.

To guard against the chilling effect of SLAPPs, twenty-eight states, the District of Columbia, and one U.S. territory have enacted anti-SLAPP statutes. The U.S. jurisdictions with anti-SLAPP statutes are: Arizona; Arkansas; California; Delaware; District of Columbia; Florida; Guam; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Texas; Utah; Vermont; and Washington.

Two other states, Colorado and West Virginia, do not have anti-SLAPP statutes, but their courts have recognized a defense to lawsuits that target activities aimed at petitioning the government for action on issues of public importance. These common law (i.e., judge-made) rules offer similar protections to those provided by some anti-SLAPP statutes.

If you get sued in a state with an anti-SLAPP law, you may be able to dismiss the lawsuit at an early stage of the proceeding and recover your costs and attorneys' fees. If you live in a state with an anti-SLAPP law but someone sues you in a state without one, you may be able to argue that the laws of your state should apply. For example, if you are a journalist in California (which has an anti-SLAPP statute) writing about the local community impact of the actions of a corporation based in Iowa (which does not have an anti-SLAPP law), you may be able to argue that California law should apply even if the corporation files a lawsuit in Iowa.

See the state pages for state-specific information on anti-SLAPP laws.

Types of SLAPPs

SLAPP suits come in many forms. Some of the common claims asserted in SLAPPs include:

Defamation: Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). Defamation is the most common basis for a SLAPP suit. An individual or organization might file a defamation lawsuit in reaction to criticism or negative commentary published on- or offline, such as in a blog post, news report, letter to the editor, or speech at a public meeting, just to name a few. For more information, see the Defamation section.

Interference with contract or economic advantage: This claim alleges that you intentionally interfered with a contract or other business relationship between the plaintiff and a third party that would have benefited the plaintiff economically. You also might see this claim referred to as "tortious interference with business relations," "tortious interference with contract," or some like-sounding phrase. In the publishing context, you often see this claim included along with a defamation claim. Like a defamation claim, individuals and organizations tend to bring this claim in response to criticism or negative commentary published on- or offline, or political activity that hampers the plaintiff's activities.

Intentional infliction of emotional distress: This claim alleges that the defendant intentionally or recklessly committed some outrageous act that caused the plaintiff extreme emotional distress. As above, in the publishing context, you often see this claim included along with a defamation claim, and it often comes in response to criticism or negative commentary published on- or offline.

Conspiracy: A conspiracy is an agreement between two or more persons to commit an illegal act. A plaintiff might claim that you and someone else conspired to commit defamation, to interfere with a contract, or to intentionally inflict emotional distress. Often, the plaintiff will not even identify who you allegedly have conspired with, naming instead an unspecified number of "John Does" or "Jane Roes" in the complaint.

Keep in mind that, at least at the outset, calling a lawsuit a SLAPP is a subjective evaluation of the merit of its legal and factual claims. If someone sues you, the complaint will not identify itself as a SLAPP, and the person filing the lawsuit will vigorously deny characterization of it as a SLAPP. In the end, you cannot definitively establish that a lawsuit is a SLAPP until a court has ruled on the question.

How To Protect Yourself Against a SLAPP

Be aware that when you are speaking out on a matter of public controversy that involves significant private interests or the reputation of a government official, you may find yourself the target of a SLAPP. By being prepared, you can minimize your risk of being SLAPPed and continue to exercise your rights with confidence.

Know your rights

Under the Constitution, you have a right to free speech and to petition the government. Courts have interpreted these rights to form legal doctrines that protect the types of activities that attract SLAPPs. Note, however, that the Constitution generally does not protect defamatory, threatening, or harassing speech.

Tell the truth

Truth is an absolute defense to a defamation claim. You can protect yourself by not publishing rumors or scandalous innuendo, and you may want to avoid broad, sweeping generalizations or speculative rhetoric in favor of accurate, fact-based statements.

Diligent fact-checking will make you a harder target for a SLAPP suit. Always cite to legitimate sources. Public records are an excellent source of solid factual information. For more information on how to use the law to obtain government records, see Access to Government Information. If you use Internet sources, print out the website page in case the information there changes at a later date.

Even if what you publish ultimately turns out not to be true, you could still have a defense if the subject of your publication is a public figure, such as a celebrity, a government official, or someone who takes on an important role in the relevant debate or controversy. Public figures must prove that you made false statements about them with "actual malice" -- that is, you actually knew that your statements were false or recklessly disregarded their falsity.

In a defamation lawsuit, a court will not hold you liable for stating an opinion. But, be aware that simply adding the words "in my opinion" to the beginning of a sentence will not necessarily help you. For example, if you write, "In my opinion, Mayor Jones is taking bribes from local developers," you could be liable for defamation, unless the statement is true. In addition, if your opinion implies the existence of facts that can be proven true or false, then it is a statement of fact and not opinion for legal purposes, and you could be held liable for publishing it if the underlying facts turn out to be false.

For more information on how to protect yourself against a defamation claim, see the Defamation section.

Insurance

Insurance may be a good way to protect yourself from the expense of defending against a SLAPP. Your homeowners or renters insurance may cover damages and legal fees if someone sues you for defamation, invasion of privacy, or other legal claims. Most homeowners and renters policies, however, exclude coverage for "business pursuits," and a court might find that your online activities are a business pursuit if you earn advertising income from your site or blog or you collect money through other online means. The rules vary from state to state. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, media liability insurance might be a better option, although for many it is prohibitively expensive. See our Finding Insurance section for details on all these insurance-related issues.

What To Do If You Think You've Been SLAPPed

If someone files a lawsuit against you, and you believe it is a SLAPP, you should seek legal assistance immediately. Be aware of the deadline for filing a response to the complaint; if you miss the deadline, the court may enter a judgment against you without hearing your side of the case.

As noted above, twenty-six states and one U.S. territory have enacted anti-SLAPP statutes to help protect citizens who speak out. These anti-SLAPP laws vary in effectiveness, and some have not yet been tested in a legal case. As a general matter, however, they attempt to shift some of the costs and burdens of litigation from you to the person filing the SLAPP suit. See State Law: SLAPPs for state-specific information.

Some common provisions of anti-SLAPP statutes include:

  • Protection for speech on issues of public significance and/or activities aimed at petitioning the government for action on economic, social, and political issues;
  • Procedural mechanisms for obtaining early dismissal of a SLAPP;
  • Recovery of attorneys' fees and court costs incurred in defending against a SLAPP;
  • Expedited review of motions to dismiss in order to reduce the time and costs of litigation; and
  • Limits or stays on discovery while the court considers a motion to dismiss under the anti-SLAPP law.

If you live in a state with an anti-SLAPP law, you will want to move quickly to get the case dismissed. It is a good idea to seek legal assistance in getting the case dismissed. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help. You'll want to find help as soon as you can because successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines.

If your insurance company provides you with a lawyer who is not familiar with SLAPP cases, that lawyer may want to try to settle the case in order to minimize costs. This may sound like a good idea, but a settlement will likely include the condition that you do not discuss the matter in the future. With such a settlement, the SLAPP has been successful, because you cannot publicize the SLAPP filer's abuse of the legal system to chill public debate. Consider arranging to hire an attorney who is knowledgeable about SLAPP law.

In addition to getting the case dismissed, you may want to consider going on the offensive. Eight states have statutes allowing "SLAPPback" suits, which are filed as counterclaims against a SLAPP or in a separate lawsuit. These states are California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah. A SLAPPback is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. Even if your state does not have a statute addressing SLAPPbacks, you may be able to sue your opponent for malicious prosecution or abuse of process under the common law of your state. However, you should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.

 

 

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Last updated on February 4th, 2013

   
 
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