In the mid-1990s, a California university brought a libel suit against the San Francisco Chronicle over a series of articles detailing the school’s conflicts with its county government.
Around the same time, an Athon, Mass., selectman sued an operator of a local Internet news site for defamation in connection with the operator’s characterization of politically controversial decisions by the city’s selectmen.
Under special state statutes designed to discourage “strategic lawsuits against public participation,” or SLAPPs, both the newspaper and the Internet publisher earned expedited dismissal of the lawsuits and were entitled to recover attorney’s fees and costs.
Unfortunately, such stories are uncommon.
Only 22 states have enacted “anti-SLAPP” statutes, and few of those laws sweep broadly enough to protect against suits such as the ones mentioned above. To alleviate this problem and to achieve uniformity in the protections accorded persons who speak out on public issues — including journalists — the Society of Professional Journalists and its supporting foundation, Sigma Delta Chi, joined forces with the law firm of Baker & Hostetler LLP.
They developed a model anti-SLAPP statute and lobbying plan through which the model statute may be enacted in all states.
The finished products — “The Uniform Act Limiting Strategic Litigation Against Public Participation” and “Getting It Passed” — were funded by a grant from the Sigma Delta Chi Foundation and will be available soon on SPJ’s Web site, www.spj.org.
SLAPPs have proliferated during the past 30 years and defy easy definition.
They are initiated by corporations, government officials and individuals, target both radical activists and typical citizens, and masquerade as claims for defamation, nuisance and interference with contract, just to name a few. These suits are unified only by the singular goal of those who bring them: to ensnare their targets in costly litigation that distracts them from the controversy at hand and deters them and others from engaging in their rights of speech and petition on issues of public concern.
An example of a common SLAPP would be a defamation suit brought by a land developer against an individual who spoke out against the developer’s plan during a zoning board meeting. However, as the San Francisco and Massachusetts examples show, SLAPPs come in many shapes and sizes, and many implicate journalists and the media.
The Uniform Act is intended to encompass all of the best features of the existing anti-SLAPP laws and to resolve the ambiguities in those statutes that have come to light. The act provides that a party may bring a special motion to strike any claim that is based on “an action involving public participation and petition.” The centerpiece of the model legislation is Section 3, which defines “an action involving public participation and petition” and thus indicates the types of First Amendment activity that trigger the special protections. The greatest challenge in drafting the act was defining the scope broadly enough to serve the interests of the media without defining it so broadly that the legislation will not find wide support among public interest organizations and in state legislatures.
Ultimately, “an action involving public participation and petition” was defined broadly to include “conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.”
If a party brings a special motion to strike and makes an initial showing that the claim against he or she is based on an action involving public participation and petition, the burden shifts to the other party to show a probability of prevailing. If that party cannot make such a showing, the claim is dismissed.
Further discouraging the SLAPPer from bringing baseless claims is the fact that he or she must pay the other party reasonable attorney’s fees and litigation costs — and possible additional penalties — if the motion to strike is successful.
Finally, the Uniform Act provides that a hearing on a motion to strike must be held no more than a month after service of the motion to strike, thus disabling the SLAPPer from tying up his opponent in court for months or years.
But writing a strong model law represents only a tiny part of the battle.
The true challenge remains in getting that legislation passed in the states. Land developers, business groups and others with deep pockets (and government connections) tend to oppose anti-SLAPP legislation most vigorously, so it is often difficult to marshal widespread support among legislators. The lobbying plan, “Getting It Passed,” provides tips for getting legislators’ attention and includes a sample “Statement of the Problem” that can help raise awareness of the problems created by SLAPPs and the need for a remedy.
“Getting It Passed” also features a representative list of organizations with which public access advocates can collaborate to push for anti-SLAPP legislation. While media organizations will often have more resources than other anti-SLAPP advocates, “Getting It Passed” indicates that it might be most effective for media organizations to play a behind-the-scenes role while other public interest groups take the lead in lobbying.
However, even if they don’t knock on doors at the state capitol, journalists can do a great deal to help the cause.
They can publicize efforts to pass anti-SLAPP legislation to put pressure on lawmakers. And most important, they recognize and call attention to SLAPPs as they occur in their community.
No more effective lobbying tool exists than a true story that brings life to the problem of SLAPPs.
Malena F. Barzilai is an associate in the Washington, D.C., office of Baker & Hostetler LLP, which serves as First Amendment counsel to the Society of Professional Journalists. She formerly worked as an editor at the Asbury Park Press and The Miami Herald.