Technical-Legal Confluence News

The Citizen Participation Act of 2009, HR 4364, has the long title “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”, and for other purposes”. It was introduced by Rep Steve Cohen (D-TN).

The govtrack link is here.

The summary is important reading. It starts “Citizen Participation Act of 2009 - Declares that Strategic Lawsuits Against Public Participation (SLAPPs), filed against thousands of individuals, organizations, and businesses based upon their valid exercise of the rights to petition or free speech, are an abuse of the judicial process that waste judicial resources and clog the already over-burdened court dockets. Declares immune from civil liability any act of petitioning the government made without knowledge of falsity or reckless disregard of falsity. Requires a plaintiff (especially in a SLAPP) to prove knowledge of falsity or reckless disregard of falsity by clear and convincing evidence.”

Link for summary.

Link for text.

A Strategic Lawsuit Against Public Participation (SLAPP) is a lawsuit filed against a defendant (often called “frivolous” or “barratry”) where the aim is not necessarily to win a case but to burden a speaker with unreasonable legal costs in defending what is normally viewed as a First Amendment right. SLAPP cases have occurred all over the world and tend to occur with relatively specific circumstances involving specific corporations or entities or sometimes outlier religious or advocacy groups. From the details of cases in the past posted vy First Amendment advocacy groups, they tend to be relatively narrow in content. Sometimes they deal with local issues. All this considered, SLAPP suits are considered an existential threat to effective free speech, and, if not contained, could drive most political process back into the control of special interests.

In the United States, 25 states have anti-SLAPP statutes. One of the most important is in California.

The main advocacy organization in California is the California Anti-SLAPP project.

Here is the history page for California statues. (link).

The basic law is Sect 425.16, link here.

Sect 425.17 curbs reported abuses of 425.16, link.

Sect 425.18 has to do with recovery of damages by SLAPP victims, link.

Sections 2007.1 and 2007.2 deal with challenging subpoenas, link.

Section 47 has to do with privileged broadcast, here.

These states have anti-SLAPP laws: Arkansas, Arizona, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, and Washington. Colorado and West Virginia have court opinions dealing with SLAPPs.

Unsuccessful SLAPP suits may result in the “Streisand Effect” where the alleged problem is exposed more with the public. SLAPP’s have sometimes occurred in situations where plaintiffs believe that the media are not as likely to be interested in the problem or sympathetic with the defendant.

Problems like SLAPP and “spamigation” have led to calls for general tort reform, including “loser pays” type systems.

A particularly interesting narrative of a SLAPP case occurs in “The Spam Diaries” blog, here.