A SLAPP, or “strategic lawsuit against public participation,” is a little known but widespread threat to the First Amendment. SLAPPs are meritless suits brought by companies, individuals and sometimes the government, not to win, but to silence critics. Congress is now considering federal anti-SLAPP legislation. In this piece that first aired last year, OTM producer Nazanin Rafsanjani looks into SLAPPs.
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BROOKE GLADSTONE: One of the least-known and most lethal threats to free speech is a kind of lawsuit known as a SLAPP. It’s an acronym for Strategic Lawsuit Against Public Participation, and it’s a term used by free speech advocates to describe meritless lawsuits intended to spend critics into silence. That’s why SLAPPs target ordinary citizens more than deep-pocketed media outlets. In this piece, which we first aired last year, Producer Nazanin Rafsanjani looks into SLAPPs.
NAZANIN RAFSANJANI: Penelope Canan and George Pring were professors at the University of Denver in the early '80s when they held a contest to pick the acronym SLAPP. Penelope Canan:
PENELOPE CANAN: Actually, SLAPPs was the runner-up. I made up that one. But the bottle of wine went to somebody who suggested First Amendment Repression Torts, but we didn't like that particular acronym. [LAUGHS]
NAZANIN RAFSANJANI: First Amendment Repression Torts - oh!
PENELOPE CANAN: Yeah, yeah, so we decided not [LAUGHS] to go with that one.
NAZANIN RAFSANJANI: Canan says a defining characteristic of a SLAPP is the plaintiff, the person filing the meritless suit, usually loses the case. So why are SLAPPs such a big danger to free speech?
PENELOPE CANAN: We don't think that they are intended to win on their legal merits, and it turns out way more than 95 percent get thrown out of court, eventually. It’s just the “eventually” and the ordeal of the time that essentially is such a chilling effect on citizens.
NAZANIN RAFSANJANI: Like the Rhode Island homeowner sued for complaining to the government that her drinking water might be contaminated, or the New Yorkers sued for testifying against a proposed real-estate deal, or the members of the Beverly Hills League of Women Voters who complained against a high-rise condo building. They were sued for more than 60 million dollars for libel. Canan says most people have no idea that, for example, the owners of a landfill can sue someone who tells the government they fear their water is polluted, and for that reason she has mixed feelings when SLAPPs get media attention.
PENELOPE CANAN: Because somebody in the reading or listening audience has never heard about ‘em before, and then they go, oh, my gosh, I never knew this. There’s a risk to my speaking out. I better not go to the public hearing.
NAZANIN RAFSANJANI: Speaking out was once confined to public hearings or letters-to-the-editor or picket signs. Today, much of it happens online, and that gets people into trouble. Take the case Comins vs. VanVoorhis. In 2008, a Florida man named Christopher Comins repeatedly shot two Siberian Husky dogs. The incident, recorded and narrated by Irish tourists, ended up on YouTube. The sound we're about to play might be a bit upsetting.
[SOUND OF GUNSHOTS]
WOMAN: I actually heard gunshots.
WOMAN: Oh! Oh, my God, he shot them!
[SOUND OF DOG, WHISTLE] Oh my God!
NAZANIN RAFSANJANI: Local TV stations, The Orlando Sentinel and CNN, among others, picked up the story. So did grad student Matthew VanVoorhis, who slammed the shooter in a post on his blog, called Christopher Comins, Barbarian, Hillbilly, Dog Assassin. Comins is suing VanVoorhis for defamation but VanVoorhis says this is just about shutting him up. He believes he’s being SLAPPed.
MATTHEW VanVOORHIS: If you sue a blogger, you not only shut that person up but you also – other bloggers become intimidated and censor themselves because they see that people are being sued for this and that it’s very costly to defend oneself against the lawsuit.
NAZANIN RAFSANJANI: His lawyer, First Amendment attorney Marc Randazza, says Comins singled out his client on the assumption that a blogger would be easy to scare.
MARC RANDAZZA: If he had gone after The National Enquirer or if he had gone after The Orlando Sentinel, they have more money than him and they could probably bury him in legal fees. But he thought that this guy who’s just a graduate student at the University of Florida might not be able to defend himself as well.
NAZANIN RAFSANJANI: In court papers, Comins says he shot the dogs thinking they were wolves and that they were endangering a herd of cattle. Comins’ attorneys declined to be interviewed on tape, citing the ongoing nature of the lawsuit. In a statement, they said they believe the suit is a legitimate defamation case, and it was filed because VanVoorhis misstated facts on his blog. When we consider threats to the First Amendment, we usually think about the government infringing on our rights, but a strategic lawsuit gives anyone rich enough to hire a lawyer the potential power to silence someone else. Attorney Marc Randazza:
MARC RANDAZZA: Every single person who is online at all is a potential SLAPP suit defendant. Maybe the Dalai Lama isn't because he never says anything negative about anybody. But unless your kid is the Dalai Lama, one day you may come home and find that there’s a process server at your door suing you because of something that your kid posted, or if you have any opinions that are in any way negative about anybody, the same thing.
NAZANIN RAFSANJANI: Randazza recently represented a guy who tweeted that a Hyundai dealership was the worst on the planet, and last year Horizon Group Management sued a woman for tweeting to 20 people, quote, “Who said sleeping in a moldy apartment was bad for you? Horizon Realty thinks it’s okay.” Randazza says if you must tweet or blog or even update your Facebook status, for God’s sake, protect yourself.
MARC RANDAZZA: If there’s one thing that I could get out to the listeners is that if you have renters insurance or homeowners insurance, it’s usually so cheap to add defamation coverage to your insurance policy. For me it was, I think, an additional three dollars per year. So now I can say bad things about anybody I want.
NAZANIN RAFSANJANI: Of course, you can't just say any bad thing. For a court to determine a lawsuit is a SLAPP, it must be shown to be without merit, that is, not defamation. But I asked Randazza, isn't it possible that one person’s SLAPP is another person’s legitimate defamation suit? I can imagine this making people nervous where they think, I don't want people to just be able to say whatever they want about me on the Internet.
MARC RANDAZZA: Well, that’s the thing. They can't. My position is not that people should be able to say whatever they want. I'm talking about cases when there is no actual defamation, when it’s a frivolous lawsuit.
NAZANIN RAFSANJANI: In the nearly three decades since the term “SLAPP” was coined, 27 states have enacted some form of anti-SLAPP law. But the protections vary wildly from state to state. Usually a defendant can file an early motion claiming the suit is meritless and intended only to silence them. Then the plaintiff has to show that the suit has merit before it drags on year after expensive year. Recently the makers of a product called MagicJack sued the website Boing Boing. Boing Boing’s managing editor, 1, says they were lucky the suit was filed in California, the state with the strongest anti-SLAPP statute.
ROB BESCHIZZA: Of all the places in America they could have formulated a legal attack on us, that’s the place where it’s least likely to succeed.
NAZANIN RAFSANJANI: MagicJack, by the way, is a product that enables you to make phone calls using the Internet. Beschizza wrote a short post criticizing MagicJack’s terms of service. The routine post drew a surprisingly strong reaction.
ROB BESCHIZZA: Usually people who you criticize or make fun of on the Internet, they will talk to you, they will open communication, and we've always been prepared to add rebuttals to posts or change posts if we become aware of an objection or if we've written something which is inaccurate. But in this case they just sued right out the blue.
NAZANIN RAFSANJANI: We contacted MagicJack and its legal team for comment but didn't hear back. Beschizza says Boing Boing’s lawyers determined that MagicJack was suing not to win a defamation case but:
ROB BESCHIZZA: Just to cause trouble for us, just to try to bully us into getting rid of the post right away. It was a perfect example of the Streisand effect, I think.
NAZANIN RAFSANJANI: That’s right, the Streisand effect, as in Barbra Streisand. That’s the unintended consequence of publicizing some piece of information you were trying to quash. First Amendment Attorney Marc Randazza:
MARC RANDAZZA: Back in the '90s sometime, a guy published an aerial photograph of Barbra Streisand’s house on his webpage. His webpage got maybe 400 hits. Then Barbra Streisand sent a nasty demand letter to him that he needed to take it down right away. So he posted the letter. And I think within a month after that he had somewhere close to 450,000 hits. Now you have people who are interested in freedom of speech on the Internet looking at it, you have people who are interested in Barbra Streisand looking at it. And when plaintiffs decide to bring these claims, the one thing you can be certain of is that the number of people who heard the negative opinions will grow exponentially.
NAZANIN RAFSANJANI: In the end, MagicJack lost the case. Boing Boing invoked the California anti-SLAPP statute and recouped a portion of its legal fees. Boing Boing’s Managing Editor Beschizza says he was always confident they'd win but he worries about the broader impact of SLAPPs.
ROB BESCHIZZA: We have legal insurance. We have insurance to cover the costs of these kinds of actions. We have that stuff available to us because we're an established company, we're an established blog. The most frustrating thing for us is to know that most people would have been easily intimidated by MagicJack into silence. The reason these companies do this is because it works.
NAZANIN RAFSANJANI: A judge once said about SLAPPs, quote, “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” That was in 1992, before tweets and Facebook and blogs, before there was so much more speech to silence. For On the Media, I'm Nazanin Rafsanjani.