THE ANTI-SLAPP RESOURCE CENTER The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights. These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."
If you believe that you have been SLAPPed, then you'll want to review FAP's guide for SLAPP victims below.
(The following guide is intended to be a quick reference and provide general information to journalists and citizens. It addresses some common access problems, but does not substitute for research or consultation with a lawyer on detailed questions.)
GUARDING AGAINST THE CHILL: A SURVIVAL GUIDE FOR SLAPP VICTIMS
WHAT ARE SLAPP's?
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where the both cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues. Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including: writing a letter to the editor circulating petitions calling a public official reporting police misconduct erecting a sign or displaying a banner on their property complaining to school officials about teacher misconduct or unsafe conditions in the school speaking at a public meeting reporting unlawful activities testifying before Congress or state legislatures speaking as an officer of an active public interest group filing a public interest lawsuit In California, a new law to protect people from SLAPPs, Code of Civil Procedure section 425.16, took effect in 1993. The law allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.
The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes: any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. Other states have similar protections against SLAPPs. Washington and New York have "anti-SLAPP" statutes: Washington Revised Code sections 4.24.500 - 520; New York Civil Practice Law, Rule 3211(g) and Rule 3212(h), and New York Civil Rights Law sections 70-a and 76-a. The Colorado Supreme Court has ruled that citizens of that state are protected from SLAPPs. Protect Our Mountain Environment v. Superior Court, 677 P.2d 1361 (Colo. 1984).
HOW DO YOU KNOW IT'S A SLAPP?
SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following: Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.
Invasion of Privacy. This legal theory refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.
Nuisance. This legal theory includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process."
Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.
Intentional Infliction of Emotional Distress. This legal theory is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.
Interference With Contract or Economic Advantage. This legal theory is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons. This listing is not exhaustive. Neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.
It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties' subjective motives - bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits - are irrelevant. The only critical issue is whether protected expressive activity triggered the suit, and is therefore at risk.
HOW TO PROTECT YOURSELF FROM BEING A SLAPP TARGET How To Remain Involved
Dialogue and freedom of expression are at the core of our democratic form of government. One way to retain our rights to free speech and petition is to continue to use them.
A good way to remain involved is to know your legal rights. Become familiar with California's new "anti-SLAPP" statute, Code of Civil Procedure ? 415.16. This statute does not guarantee that you will never be the target of a SLAPP. However, it presents a mechanism through which a judge can dismiss the suit against you at the very outset of the suit. If the judge rules that the suit must be dismissed, the SLAPP filer is required to pay the cost of your defense, including any attorneys' fees.
Check Insurance Coverage
If you are a homeowner and carry homeowner's insurance, check you policy for personal injury liability coverage. Many policies protect homeowners from personal injury lawsuits based on such things as defamation, nuisance, interference with contract, etc. If you can't tell whether your policy will protect you, consult your carrier. If your present policy does not cover you, ask about a rider which would extend coverage to such matters.
Speak the Truth
Whether you are writing your government representative or speaking on an issue of public importance, always make sure your statements are factually correct. If your letters, reports, pamphlets, or other written documents are accurate, there will be no factual disputes later on. You may want to keep copies of all background materials and note sources of facts and figures quoted so that you can show where you obtained the information.
Understand that there are differences between statements of fact and statements of opinion. You may be legitimately sued for false statements of fact, but not for statements of opinion. Be careful. You will not be protected for stating, "In my opinion, Senator Squelch is a liar and a thief," unless, of course, your statement is entirely true. If your words contain an assertion of fact that is capable of being proven true or false -- i.e., that Squelch is or is not a liar and a thief -- you can be sued if it is shown that your statement is false, even though you tried to qualify the statement as "opinion."
Seek Legal Advice
If you are planning to write to a government official or speak out on a public issue, and you are unsure if your statements could subject you to a lawsuit, contact a lawyer who can assist you. The Where To Find Help section of this handbook may help you in finding a knowledgeable attorney to consult.
HOW TO DEAL WITH SLAPPs
If you find yourself the target of a SLAPP, don't panic! Many other people have been in your position, and there are individuals and organizations out there that can help you. What to Expect Initially
If you are the target of a SLAPP, you may receive a demand letter from the lawyer representing the SLAPP filer which lists a series of "options" you must meet to resolve the matter before a lawsuit is actually filed. Often, the letter will demand a sum of money, an apology (generally public), your agreement to refrain from speaking out or participating in the future, your agreement not to bring a lawsuit against the SLAPP filer, or a combination of these and other things.
The more likely scenario is that you will learn of the SLAPP when you are personally presented with a "Summons" and "Complaint" at home or work. The Complaint will list the specific "wrongs" you are alleged to have committed. Look for the legal jargon: words like "libel," "slander," "interference with contract," etc., which are briefly defined above.
The Summons is a notice, telling you that you have been sued; it will give a deadline (usually 30 days) within which you must file a formal response to the Complaint with the court.
Locate and Hire an Attorney
It is always best to find an attorney to represent you.. Do not try to handle the case yourself! Being sued, especially with a SLAPP, is very serious business. An attorney may be able to effectively end the litigation at the very beginning of the lawsuit, minimizing the emotional and psychological stress that can result from being sued, and saving you tremendous amounts of time and money.
Act Early. Do not wait until just before the formal response to the Complaint is due to start looking for an attorney. Lawyers are busy, too, and need some time to assess your case. Waiting until the last minute to find a lawyer to help you will only add stress to an already stressful situation.
If you find yourself pressed for time, keep in mind that the attorney who files your formal response to the Complaint does not have to be the attorney who will eventually represent you in court. At the very least, find a lawyer who can help you draft and file a response to the Complaint on time. If you miss this deadline, the Court can enter judgment against you, without first considering all the arguments in your defense. If a judgment is entered against you, you may have to pay the SLAPP filer for any damages that are being claimed as a result of your activities! DEADLINES CONTAIN THE WORD "DEADL[Y]," AND SHOULD BE TREATED AS SUCH. THEY CANNOT BE MISSED.
But Lawyers Cost Money
It should come as no shock that most lawyers expect to get paid for their work. Yet, even without increasing fee rates demanded by attorneys, defending a case is extremely expensive. Costs associated with a typical case include court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees and other costs. You must consider how these costs will be paid.
The attorney you select should be in a good position to tell you how much he or she estimates defending you will cost. Lawyers are often flexible on how they expect to paid. Do not be afraid to discuss alternative payment terms with the lawyer and with an eye to your pocketbook. Some lawyers will agree to take your case on a contingency basis. This means that the lawyer will be paid only if you either win the case and the court rules that the SLAPP filer must pay your attorneys' fees or you successfully bring a lawsuit against the SLAPP filer for damages suffered by you as a result of being the target of a SLAPP (This is generally referred to as a "SLAPPback.")
If you are sued as a result of expressive activity undertaken on behalf of a group, check on whether the group has insurance which may cover you, maintains a legal defense fund, or is willing to help defray legal costs by doing fundraising on your behalf. Some attorneys will agree to defend you on a pro bono (free) or low cost (reduced hourly attorney fee rate) basis. One way to find pro bono or low cost legal services is to check the Where To Find Help section of this handbook. Be forewarned, however, that the law requires that you remain responsible for paying all legal costs associated with the case, such as filing fees and court costs. This is true even if the attorney agrees to work for you for free.
Now the good news. Under the new California anti-SLAPP law, you will be entitled to recover legal fees, court costs, and other expenses if the judge rules that the SLAPP filer cannot show a probability of winning the suit. Thus, even if you can't afford to pay hourly attorney fee rates, an attorney will often be encouraged to defend you on a pro bono, contingency, or low cost basis if he or she understands that attorney fees will be paid by the SLAPP filer if you win.
Insurance: Defense vs. Coverage
In many cases, your homeowner's liability insurance policy will require the insurance carrier to defend you if you are sued. Consult your carrier and an outside attorney to see if you are covered. If so, the carrier will provide a lawyer to help you. This will mean you will not be required to pay legal fees for legal representation. Be aware, however, of two consequences of such an arrangement. First, the company attorney will be inclined to reflect the carrier's position, which may not always be in line with what you want. Second, there is a difference between the insurance company providing you with a defense and ultimately paying any judgment entered against you. The company may defend you, but reserve its rights not to pay the judgment if it later determines the judgment is not covered by your policy.
Factors Determining the Right Representation for You
Finding the right attorney will take a little bit of work and energy on your part. There are a number of factors to consider:
Sympathetic. It is helpful to find a lawyer who shares or understands your politics, or at least someone who will listen and understand why you said or did what you did. Conflicts over differing philosophies, gender bias, or political beliefs are not only time consuming, they may affect the kind of representation you will receive.
Experienced. Find someone who has experience defending SLAPP victims or who is familiar with the legal and factual issues of your case. This can be critical to your case both in terms of costs and time. Ask the lawyer if he or she has worked on these kinds of cases before, and what kind of experience that lawyer has generally. You may also ask if the lawyer would mind if you speak to other clients and/or SLAPP victims the attorney has represented in the past.
Willing to Share the Load. It is important to remain involved in the decision-making process throughout all the stages of the lawsuit. Do not be afraid to ask about the potential ramifications of all legal and strategic decisions before authorizing your attorney to take action on your behalf.
Media Savvy. It may also be helpful if the attorney is used to dealing with the press. Often these kinds of cases generate a lot of media interest. The right kind of media visibility will help your case. The wrong public image, however, could be devastating.
Compatible. Often, you must ultimately decide if you will be satisfied with the prospective attorney. It is very important that you be able to work with the attorney comfortably. You may well be spending more time with this person than you know.
The Mechanics of Finding a Good Lawyer
Take the time to gather all information you can and present it to prospective attorneys. Ideally, the attorney should have a complete a picture of the relevant facts of the case and any legal matters pertaining to the case that you may be aware of.
Case package. Create a neat package of information that you can present to potential attorneys; it may include: a brief cover letter which is respectful of the attorney's time, focuses on the key issues in your case, and states, specifically, what you would like the lawyer to do for you.
a copy of the demand letter, Complaint or any other official document you received from the SLAPP filer or his or her lawyer. the names of any attorneys who may have advised or represented or advised you in this action, and how to contact them. the names of the attorney or attorneys representing the SLAPP filer, and how to contact them. the names of important witnesses, if any. key newspaper articles or other background information about your case and/or your opponents.
Attorney interview. Explain your story as succinctly as possible. You may even wish to practice before the first interview. Have you own list of questions ready. The list should include questions about the case, as well as questions about the lawyer's experience and interest in similar suits. Become familiar with California's anti-SLAPP statute and ask the attorney if it applies to your case. You may want to learn as much as you can about SLAPPs in general. Your local library is a good source for current literature on the topic. You can also learn more about SLAPPS by contacting one of the agencies listed in the "Where to Find Help" section of this page.
THE LEGAL PROCESS - DEFENDING A SLAPP
There are several stages to SLAPP litigation. The following is a list of the key events you can expect in defending a SLAPP.
Filing a Response.
You have a very limited amount of time (typically, 30 days) to file and deliver "an initial responsive pleading." Often, your "first responsive pleading" will be the Answer to the Complaint. This is a formal document detailing your response to each of the allegations in the Complaint. Or, it may be a document which attacks the Complaint on legal or factual grounds, such as a Special Motion to Strike (described below). Remember that your initial response, whether an Answer, a Special Motion to Strike, or other document, must be filed with the Court and delivered to the other side within the deadline specified on the Summons.
Opposing a Temporary Restraining Order.
A SLAPP filer can ask for a temporary restraining order ("TRO") when the Complaint is filed. A TRO is a court order that temporarily orders or prohibits a specific act or series of acts until the court rules on the matter. A TRO is of limited duration, usually lasting no more than 20 days. You may get very little notice (24 hours) that a TRO is being sought. As a TRO may impact your ability to speak out on an issue or remain active in important public affairs, it must be vigorously opposed.
Opposing a Motion for Declaratory and Injuctive Relief.
The Complaint may seek declaratory relief, which means that the filer has asked the court to make a ruling on the respective rights and duties of the parties under the circumstances. The Complaint may also seek preliminary or permanent injunctive relief; like a TRO, a preliminary injunction is a temporary order which orders or prohibits a specific act or series of acts until trial. A permanent injunction orders or prohibits an act or acts indefinitely.
A motion for declaratory or a preliminary or permanent injunction requires that all interested parties be given notice of the motion (usually 15 days) and an opportunity to be heard. The crucial issues in a SLAPP are frequently decided on such motions. If the SLAPP filer is seeking such a motion, it must be vigorously opposed.
Bringing a Special Motion to Strike.
California's new anti-SLAPP statute, Code of Civil Procedure ? 415.16, gives victims an opportunity to have the court rule at the outset whether a SLAPP filer can show a probability of winning the suit. If the judge finds that the filer cannot prove that the case has a probability of winning, the court will "strike" the Complaint, and dismiss the suit. The court will also order the filer to pay to the SLAPP victim his or her attorneys' fees and costs.
This special motion generally must be brought 60 days from the date the Complaint is received, and is the best way to put an end to a SLAPP early in the proceedings. The special motion to strike can be brought later than 60 days after the Complaint is received, but only if a court, in its discretion, allows it to be filed at a later time.
Make sure that there is a good basis for bringing the special motion to strike. If the court finds that it is frivolous, or brought only for purposes of harassment or delay, the court will sanction you, and order you to pay the amount of attorneys' fees and costs incurred by the other side in opposing your motion.
Dealing with Discovery.
Discovery is the term for the process in which parties to litigation gather information from each other. This is accomplished by depositions, in which individuals are orally questioned by lawyers, under oath, as if on the witness stand, or by interrogatories, which are written questions by one party to the other and which require a written answer, also under oath. Parties may also ask that any important documents be turned over; this is known as a request for production of documents. The process of discovery can take months to complete.
Under the special motion to strike procedure of Code of Civil Procedure ? 415.16, described above, all discovery is suspended or stayed until a judge rules on the special motion to strike. This means that all discovery must be halted until the judge rules. This is important because even the process of having to answer discovery requests can impact one's willingness to oppose a project or speak out on public issues. However, if you believe the other side has information necessary to your defense, you will be unable to get it once the special motion to strike is filed. Carefully consider whether there is information you may need before filing the special motion to strike. Alternatively, the court, upon a formal request and for good cause shown, may order that a specified course of discovery be conducted.
In many counties, once discovery is over, cases are ordered to arbitration. Arbitration is a mini-trial or hearing in which the case is presented to a neutral party -- usually another attorney or a private or retired judge -- who makes a determination and an award. The arbitration ruling can be appealed by either party.
Filing a Motion for Summary Judgment.
Upon completion of discovery and following arbitration (where the arbitration procedure is used), any party can bring a motion for summary judgment. This is used to inform the court whether there are any material issues of fact in dispute. If there are no factual issues in dispute, and only issues of law remain, the judge decides the case by interpreting the relevant law. If however, factual disputes remain to be decided -- for example, whether one party or the other is telling the truth -- the case must go to a jury, unless the parties agree that a judge may decide the issue.
Preparing for Trial.
If the case cannot be resolved by any of the above procedures, it will be considered in a trial. A jury or judge will hear the evidence, which may include live testimony from each side, and present a final ruling or "judgment."
Judgment and Appeal.
After trial, a judgment is entered according to the ruling of the jury or trial judge. If the judgment orders the payment of money from one party to another, there are various mechanisms to enforce the judgment to ensure that payments are made. A final judgment may be appealed to a higher court, by either party, but only upon a showing of some legal error. Generally, the filing of an appeal does not render the judgment automatically unenforceable. To pursue an appeal, the losing party must instead post a bond, often in an amount twice that of the judgment, to secure the judgment during the appeal process.
An agreement among the parties to resolve the case can be reached before the Complaint is filed, at any time during the litigation, or even after trial.
Mapping Out a General Strategy With Co-Defendants.
It is very likely that you will not be the only person being sued by a SLAPP filer. A common strategy is for the filer to sue all vocal opposition. In addition, the SLAPP filer can sue numerous (anywhere between ten and several hundred) as yet unnamed "DOE" defendants. This means that the SLAPP filer can, at any time during the case, replace a "DOE" defendant with a named individual. As a result, others who are sympathetic to your position or cause may be fearful of helping you or continuing to speak out on the issue, because of a concern that at any time they, too, may be sued.
If you are one of a number of people being sued, consider a cooperative defense strategy. Cooperation with other defendants can have a number of benefits. Often, it helps to develop a good and successful defense. In addition, cooperation with others can reduce the stress and financial burden of defending a lawsuit by yourself.
The first step is to come to an agreement with co-defendants about what issues to focus on. Does the litigation seek to impede your work or that of your organization? How important are these goals to your work? Would you be willing to give up your work to settle the case? What if others have used alternative or unlawful means to pursue these common goals -- are you willing to stand with these persons, though you differ as to how specified goals should be accomplished? Consider the significance of the suit -- if the SLAPP filer is successful in silencing you and your friends, will others be silenced too? Decide how litigation expenses and attorney fees are going to be paid and by whom. If money and resources must be raised, agree upon fundraising efforts, who is responsible for these efforts, and how money will be disbursed from such activities.
Decide at the outset who will be the spokesperson(s) for your case. Spokespeople should be selected with extreme care. Public perception is important in generating interest, support, money, and sympathy. You do not want to take the chance of alienating either the judge, who will be ruling on your case, or potential supporters of your work.
If problems or disagreements arise which cannot be resolved in discussion, it is probably a good idea to split from the group and obtain your own lawyer. There is little advantage to being united with others if your own case is going to suffer.
Dealing with the Press.
Whether or not your attorney is experienced in dealing with the press, become familiar with The Press Handbook. This handbook, available through the Media Alliance in San Francisco, California, will show you how to generate positive media coverage and support for your case.
What if You File a Lawsuit First?
Often, civic minded citizens who file public interest lawsuits can be hit with a SLAPP "counter- claim." In such a circumstance, the SLAPP filer uses your lawsuit to sue you for claimed damages arising out of the circumstances which lead to you to file your public interest lawsuit.
Before you or your community group chooses to initiate a public interest lawsuit, make sure that you have a good case. Find out what all the possible ramifications are before filing suit. When preparing to initiate litigation, be sure to document everything of significance. Know your facts. You may wish to keep a litigation notebook to include the following:
important dates and deadlines referrals and attorneys contacted significant source materials a listing of information you have with the words "confidential" and "attorney-client or attorney work-product privileged" written across each page a confidential listing of key witnesses notes of discussions with the opposite side of the case
The creation of such a notebook will not only help protect you in the event of a SLAPP, it will make you a better advocate in your own case.
Also, consider whether your case will be benefitted by having other groups or organizations join your lawsuit. Often, the mere existence of several groups opposing a single project or opponent can add a note of importance to your lawsuit. Joining with like-minded individuals and groups is also a good way to spread the cost of litigation. Similarly, if the opponent turns around and SLAPPs you and your co-plaintiffs, you will not be alone in defending the SLAPP.
If you are successful in defending a SLAPP, and you can show that the SLAPP was brought for a purpose other than to resolve the issue by legal means -- e.g., the case was filed for the purposes of harassment, needlessly piling up defense costs, silencing opposition, etc. -- seek legal advise about SLAPPing back. A SLAPPback is a way to seek monetary damages, including pain and suffering, from the SLAPP filer on the theory that the original SLAPP constituted an abuse of the legal process.
In the past, juries in some SLAPPback suits have ordered SLAPP filers to pay large sums of monetary and punitive damages to the original SLAPP target. However, the decision to initiate SLAPPback litigation should not be entered into lightly. A SLAPPback, like the original lawsuit, can take years to reach a final resolution. Moreover, a SLAPPback is itself likely to be subject to the special motion to strike procedure set forth in Code of Civil Procedure ? 415.16. This does not mean that SLAPPbacks can never be won. It does mean that you should have enough evidence to prove a probability of winning the suit, before filing the SLAPPback.
WHERE TO FIND HELP
First Amendment Project (FAP). 1736 Franklin Street, Ninth Floor, Oakland, California 94612 [510/208-7744]. FAP is a non-profit public interest law firm active in two main areas of First Amendment law: anti-SLAPP and open government. FAP provides legal representation to individuals and organizations to defend against SLAPPs. FAP also helps individuals, citizen groups, and the media gain access to government records and meetings through enforcement of local, state and federal public records, freedom of information, and open meeting laws.
California Anti-SLAPP Project (CASP). firstname.lastname@example.org. 2903 Sacramento Street, Berkeley, CA 94702 [510/486-9123]. CASP is a public interest organization wich provides legal representation to individuals and organizations to defend against SLAPPs. CASP led the successful campaigns to enact the anti-SLAPP law in 1992, and to amend it in 1997 and 1999. CASP also maintaints a resource and information center about SLAPPs on its website.
SLAPP Resource Center. University of Denver School of Law, 1900 Olive Street, Denver, Colorado 80220 [303/871-6266]. The SLAPP Resource Center is run by University of Denver Professors George Pring and Penelope Canan, the leading authorities on SLAPPs. These scholars first coined the term "SLAPP" and have studied these cases extensively. Write for a free informational packet on SLAPPs.
American Civil Liberties Union (ACLU). Northern California: 1663 Mission Street, Fourth Floor, San Francisco, California 94103; Southern California: 1616 Beverly Boulevard, Los Angeles, California 90026
California First Amendment Coalition (CFAC). 926 "J" Street, Sacramento, California 94244 [916/447-2322]. CFAC is an excellent resource for up-to-the-minute information on speech, petition, and open-government laws in California. CFAC also maintains a lawyer referral service.
SLAPP Victims' Support Group. Provides emotional support for victims, encourages them to defend their First Amendment rights, and educates members and the interested public about judicial abuse related to SLAPP.
Libel Defense Resource Center (LDRC). 404 Park Avenue South, New York, New York 10016.
National Lawyers Guild (NLG). Northern California: Bay Area Chapter of the NLG, 558 Capp Street, San Francisco, California 94110 [415/285-5067]; Southern California: NLG Los Angeles, 8124 W. Third Street, Suite 201, Los Angeles, California 90048 [209/441-8721].
Local Bar Associations. Local bar associations often have a lawyer referral service and may be able to tell you which firms handle pro bono and/or low cost legal services.
Friends and Family. Friends and family are always a good place to seek help. If you are in need legal help, don't be afraid to ask everyone you know for a lawyer referral to follow up on.
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.
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 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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