SLAPP happy in America

From the Fall 2010 issue of The News Media & The Law, page 22.

Carla Main was aware that her book about eminent domain in Texas might ruffle a few feathers. So, she made multiple attempts to provide one of her subjects, a land developer in Freeport who repeatedly refused comment, an opportunity to give his side of the story.

When H. Walker Royall finally sent his response in October 2008, it came in the form of a lawsuit. Royall also filed lawsuits against Main’s publisher, the newspaper that printed a review of her book, the author of the review, and the Chicago professor who wrote a blurb for the back of her book.

“I wrote what I felt was a very fair book. To be hit with a lawsuit like this was very shocking,” Main said. Her experience with Royall’s reaction to her book, “Bulldozed: ‘Kelo,’ Eminent Domain and the American Lust for Land,” exemplifies the quintessential SLAPP situation.

Short for strategic lawsuits against public participation, SLAPPs have become an all-too-common tool for intimidating and silencing critics of businesses, often for environmental and local land development issues.

When a plaintiff brings a SLAPP lawsuit against someone attempting to exercise their right of free speech, it is usually under the guise of a defamation claim. However, as SLAPP defense attorneys and anti-SLAPP law advocates Peter Kurdock and Mark Goldowitz point out in their September article “The Need for Federal Anti-SLAPP Legislation” posted on www.sitejabber.com, it could just as easily come as an accusation of conspiracy or trademark infringement.

The goal of plaintiffs in these cases is not necessarily to actually win the lawsuit, but to drag their critics to court and bury them under a pile of attorney’s fees and embarrassment until they cry “uncle!” and agree to be quiet, anti-SLAPP law advocates said.

“SLAPPs aren’t just random meritless lawsuits,” Kurdock and Goldowitz wrote. “They are lawsuits that directly attack First Amendment rights.”

In the “Bulldozed” case, the Galveston County Daily News and the author of the newspaper’s review of Main’s book settled with developer Royall after the newspaper ran a clarification explaining that the review had no intention of defaming Royall, Main said. 

But any kind of settlement in response to an accurately reported story is an affront to many who advocate for free speech.

“That emphasizes another real danger, which is the suppression of speech,” said Dana Berliner, an attorney with the Virginia-based Institute for Justice, which is representing Main and her publisher free of charge. “To say people should shut up about politics because they might get sued, that’s a problem.”

Only the claims against Main and her publisher are still standing. Berliner submitted a request for the dismissal of all lawsuits in September and the case is currently under appeal.

In Seattle, some 2,400 highway miles northwest of Freeport, these cases are dealt with quite differently.

Washington became the first state to adopt an anti-SLAPP law in 1989 and has recently updated it to offer additional protection to those who wish to speak. An anti-SLAPP law is a statute created specifically to allow for easy dismissal of meritless lawsuits that clog up the court system and threaten a person’s right to free speech.

The revisions, which include a special motion to dismiss meritless claims early in the process, were put to the test in September when a lawsuit claiming invasion of privacy and misappropriation of likeness was brought against filmmaker Michael Moore for his use of a home video clip in his documentary, “Sicko.”

Eric Turnbow, a fan of Moore’s, submitted a video of him injuring himself while attempting to walk on his hands across Abbey Road in London. Turnbow, who signed a waiver allowing the clip to be used in Moore’s film, did not have permission from his friend Ken Aronson, who shot the footage, to submit the clip that also included a brief portion of a song Aronson had performed. Moore used 71 seconds of the video in “Sicko.”

Aronson sued Moore, but a federal judge in Washington granted Moore’s motion to dismiss the claim of defamation under Washington’s anti-SLAPP law, ruling that the use was in furtherance of free speech and was protected under the First Amendment. Aronson was ordered to pay $10,000 and Moore’s attorney’s fees, said Bruce Johnson, Moore’s attorney.

A federal copyright infringement claim is still under consideration.

Under Washington’s statute, Main’s case in Texas might be a non-issue, rather than a two-year-old lawsuit.

“I thought I was doing everything right and the fact that there is no anti-SLAPP statute I think really leaves the door open for these kinds of lawsuits,” Main said.

Main’s case has created some buzz around the Lone Star State regarding the need for an anti-SLAPP bill.

Laura Prather, the president of the Freedom of Information Foundation of Texas, has been involved in the process of drafting such a law.

“What we’ve been trying to do recently is get bipartisan support and get support from a broad spectrum of groups and build a coalition of folks all across the board to support an effort that is a good citizen participation bill,” she said.

“The biggest challenge in Texas with any lawsuit that’s filed that deals with any kind of content is we don’t have a motion to dismiss practice in Texas,” she said. The biggest breakthrough in her state’s bill will be a procedure for a quick and painless motion to dismiss a claim before it accumulates a mountain of attorney’s fees.

The motion can be filed early in the court proceedings and would give the judge authority to decide if the case has any merit or is just an attempt to silence a critic.

Once a motion is submitted, the discovery stage of the case — a lengthy process during which evidence is submitted — is stayed, further curbing the defendant’s contention with a drawn-out lawsuit.

Texas legislators have made several attempts at passing an anti-SLAPP bill. Some were killed in committee; one was vetoed by Gov. Rick Perry.

“I don’t think that there’s been a ton of momentum behind them before,” Prather said in explanation for why no bill has made the cut. She mentioned that a fear of departing from the normal way of doing things and a perceived potential increase in litigation have also stalled previous bills.

“If we can establish to the more conservative groups and to the governor that this doesn’t increase litigation, it actually decreases it, that’s going to go a long way to help get this done,” she said.

Twenty-seven states and the U.S. territory of Guam have enacted similar statutes and a push is happening in Washington, D.C., where Rep. Steve Cohen, D-Tenn, has introduced H.R. 4364, a federal anti-SLAPP bill.

“The First Amendment is a federal issue and I think we should look at protecting peoples’ First Amendment rights at the federal level and not depend on the states to do it,” Cohen said about his reason for sponsoring the bill.

As it reads, H.R. 4364 is intended “to protect First Amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘SLAPPs.’”

If adopted, it will create full, uniform, nationwide protection and will allow defendants to choose whether they want to argue their case in federal or state court. The bill will allow for a simple process for victims of SLAPP suits to make a motion to dismiss, stop discovery, recover attorney’s fees in the event that the claim is deemed meritless and remove to a federal court to determine if the lawsuit qualifies as a SLAPP suit.

As SLAPP defense attorney and director of the California Anti-SLAPP Project Mark Goldowitz explained, even states with strong statutes cannot invoke those laws against federal claims in federal court.

Like Prather’s draft for Texas and nearly every other state bill, Cohen’s federal statute draws heavily from the California anti-SLAPP law, commonly recognized as the nation’s strongest.

“You just ask the plaintiff who is threatening to sue a newspaper or television station for defamation to sit down and read the statute and explain to their client that if they lose this motion to strike they’re going to pay your attorney’s fees. In most cases now you can just persuade them not to file the action at all,” said Charity Kenyon, a First Amendment lawyer in California.

“It’s a very powerful tool which has essentially eliminated defamation action against newspapers and television,” she said.

California’s bill includes all the necessary components including providing for an early motion to dismiss, the right of immediate appeal, minimal burden for the defendant and the recovery of attorney’s fees, and it has also been extended to include online bloggers.

The extension of protection to those speaking out in the digital world has become an increasingly important aspect, especially in light of cases such as that of Justin Kurtz of Michigan.

Kurtz, a 21-year-old college student in Kalamazoo, was sued for $750,000 in a defamation SLAPP suit by a local towing company that was displeased with a Facebook group he had started titled “Kalamazoo Residents against T&J Towing.”

T&J Towing removed Kurtz’s car from his apartment parking lot and handed him a $118 fine even though he had a permit to park there. The company argued that the removal was justified because the permit was not visible and has held that the Facebook group has impeded business.

In April, Kurtz requested that the case be dismissed, but Michigan doesn’t have an anti-SLAPP law for him to rely on. The judge’s decision is pending.

Cohen’s bill, which is before the House Judiciary Committee, would alleviate the need to wait for the remaining 23 states to adopt legislation, but passage is not imminent. It was introduced in December 2009 and Cohen said that he is currently in the process of educating his colleagues on the need for such a statute.

“I think unless you have some personal interaction, which I had with a SLAPP suit filed against me, that you don’t understand the effect of it and the purpose,” he said, referring to claim that was filed against him as a state senator when he had a run-in with a halfway house operator who was looking to set up shop next to a school and daycare.

Cohen also said party politics could derail the bill.

“Oftentimes the opposition comes from business interests and business interests often influence the Republicans more than the Democrats. But there are some Republicans who are always appreciative and supportive of the First Amendment and might join with me and support it,” he said.

While the bill lingers in Congress, Kurtz will wait for a decision and Main will continue to do battle in Texas.

“I haven’t put together any other book proposals partly out of concern about what would happen because this lawsuit is still hanging out there,” Main said. “It’s very disturbing to always have this hanging out there over my head.”