Hey! Did you just SLAPP me?

This article could go a few different directions. Simple assault, maybe. Bedroom preferences, even. But actually, it is about Strategic Lawsuits Against Public Participation, otherwise known as SLAPP.

I hear you. This type of slap is more mundane, but if you are someone prone to fiery tirades over the injustices of the world, SLAPP is something worth understanding. That and anti-SLAPP statutes.

What is SLAPP?

When someone files a malicious or frivolous lawsuit intended to silence free speech, such an action is called a SLAPP suit. Often it is used against journalists, bloggers, activists, freelance writers, social media contributors, or outspoken celebrity-types who have taken up a cause, exposed the truth, or uncovered something illegal. Think Oprah, mad cow disease, and the Texas Cattle Ranchers. Or Wikimedia Foundation, comments about questionable scientific medical practices on a Wikipedia page, and the America Academy of Anti-Aging Medicine. Or environmental advocates, blog comments about the cause of global warming, and the Coal Industry. You get the picture. The lawsuit is aimed at intimidating and censoring, instead of recovering damages for some egregious wrong committed by the defendant. For a writer or activist, the last thing you want is lengthy litigation that will silence your freedom of speech. Blech!

SLAPP cases are grounded in the laws of defamation and intentional infliction of emotional stress. The plaintiff’s goal in filing the SLAPP suit is to burden the defendant with the time, expense, and hardship of fighting a lawsuit (even if it lacks merit) in retaliation for their public comments. They intend to harass you with depositions, interrogatories, document requests, and court appearances.

Now, if you were thinking that does not sound fair—squelching freedom of speech, filing malicious lawsuits—you would be right. It is not fair, which is why there are anti-SLAPP statutes in most states.

What is an anti-SLAPP statute?

Anti-SLAPP laws are used to deter the abusive tactics of a SLAPP suit by providing SLAPP victims the means to dismiss the suit early in the litigation and collect penalties, like attorneys fees, depending on the state. California has one of the oldest and best anti-SLAPP statutes. Most states have anti-SLAPP laws but the protections vary. The type of free speech anti-SLAPP laws protect can cover a broad range of subjects, or a narrowly define set, again depending on the state.

Basically, anti-SLAPP laws allow a defendant the luxury of a procedural mechanism (like a motion to dismiss) to stop a SLAPP suit, provided the subject matter of the free speech in question is protected by the anti-SLAPP statute. In most states the discovery process will be halted pending a ruling on the anti-SLAPP motion. Should the defendant prevail, anti-SLAPP statutes often award attorneys’ fees as a penalty to the plaintiff for having filed the frivolous suit.

Usually if the subject matter in question is a one of public interest or meant to influence others into action, then anti-SLAPP laws will protect such speech. For example, two bloggers who authored an article on the Huffington Post’s Green Blog about fraudulent research practices for a chemical company in the Gulf were sued for defamation. The authors were environmental activists and the gist of the article was about cleaning up the Gulf Coast. The court focused on the intent angle, which was to enlist public participation regarding cleaning up the Gulf. Likewise, the Church of Scientology has filed series of SLAPP suits hoping to suppress material online critical about the church, most of which were unsuccessful based on a topic of public interest. But often courts find it difficult to know if the free speech is merely blowing off steam or attempting rally the troops around a cause, or if the topic is of public interest or purely personal.

Even if an article or blog post does contain derogatory statements steeped in revenge or a personal vendetta, most jurisdictions will apply anti-SLAPP protection provided the statements relate to a matter of public concern. Maybe you want to warn other consumers not to do business with a particular company. While the underling facts might be about a private dispute, if there is some thread of public concern the statements usually will qualify for anti-SLAPP protection (of course, depending on your state and the statements). If instead, the statements are related to a private matter and you are merely attempting to inflict damage without any modicum of public concern, anti-SLAPP laws will not save you from a defamation suit. So, if you feel the need to rant, add a few lines related to public concern, or underscore the public interest nature of your rant, or highlight the call to further action. That way you will increase your chances of qualifying for anti-SLAPP protection.

There is no clear standard when it comes to anti-SLAPP statutes. If you are subject to a SLAPP suit, consult a lawyer about the remedies available under your state’s anti-SLAPP laws. Hopefully, your case will qualify for an early dismissal and the payment of attorneys’ fees. Likewise, if you are a victim of disparaging or defamatory statements, consider whether a SLAPP lawsuit will be a useless endeavor, and your case dismissed based on the anti-SLAPP laws in your state.


Photo credit: Vermin Inc | VisualHunt.com | CC BY-NC-SA

Legal disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. See the disclaimer link in the footer of our website for more information.

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