SLAPP upside the head
Oklahoma has inadequate protections against SLAPPs -- strategic lawsuits against public participation. So argues Laura Long in the Summer 2007 issue of the Oklahoma Law Review. (Click here for a direct link to the PDF of her article.)
If you're not familiar with the term, here's the description from Wikipedia:
A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.
While the term originated with reference to suits against people petitioning the government -- e.g., suing homeowners who file a suit to stop a zoning change -- the concept has been extended to comprehend both the Petition and Speech clauses of the First Amendment.
Oklahoma does have a statute, 12 O.S. 1443.1. Long writes:
Oklahoma's anti-SLAPP statute, section 1443.1 of title 12, provides immunity from libel suits upon certain conditions, but does not address other common SLAPP suit causes of action. The statute states that, with the exception of falsely imputing a crime to a public officer, statements made in or about a legislative, judicial, or other proceeding authorized by law shall not be punishable as libel. Further, the statute protects criticism of the official acts of public officers. For a plaintiff to recover in a libel or defamation suit, the public official must show actual knowledge of probable falsity prior to the publication. Short of a deliberate factual lie, a plaintiff may not sue a defendant for defamation even if there were serious doubts as to truth.
Long writes that one of the drawbacks of the existing statute is that it only applies to defamation and doesn't address the many other causes of action used in SLAPP suits, such as business interference, abuse of process, and conspiracy torts.
While the Oklahoma courts have taken an expansive view of protected speech, Long notes, the problem is that the remedies provided are "reactive." They may be helpful once a case goes to trial, but by then the damage has already been done to a SLAPP victim:
Like the statute's narrow scope, the lack of an effective court review process renders Oklahoma's statute inadequate to combat SLAPP suits and their ill effects. Without procedural mechanisms to prevent or cure SLAPP suits in their infancy, the statute fails the third prong of Canan and Pring's test. Due to the costs and anxiety associated with lawsuits, lengthy SLAPP suits discourage targets from continuing their petitioning activities and intimidate future petitioners for fear of similar retaliation. Moreover, prolonged suits often cause support for the original issues to wane, rendering the petitioning activities futile. Implementing procedures that allow for quick dispositions of SLAPP suits while discouraging future suits can mitigate many of these ill effects. Unfortunately, Oklahoma's statute does not provide a method for early review and dismissal, and is therefore inadequate to protect petitioning activity.In addition to Oklahoma's anti-SLAPP statute, other statutory mechanisms for combating frivolous suits likewise fail to establish adequate protection for targets. A motion to dismiss for failure to state a claim generally proves ineffective as a remedy because filers can easily frame petitioning grievances in the form of legitimate tort claims. Further, targets must still spend considerable time and money for pre-trial practice and discovery, and even if the court grants the motion, dismissals do little to deter future SLAPP suits. Similarly, motions for sanctions and shifting of attorney fees often increase total litigation and do little to discourage suing in the first place. Motions such as these may be difficult for targets to invoke and occur too late in the litigation process to prevent the chill on petitioning. Reactionary solutions may effectively vindicate defendants in ordinary lawsuits, but their impact is minimal when the purpose of the suit is to intimidate targets through enormous court costs and time commitments.
Long recommends California's comprehensive anti-SLAPP statute as a guide:
To cure a SLAPP suit with as little impact on petitioning activity as possible, an effective statute should include a special motion to dismiss, an articulable burden of proof for the filer that may include a requirement for more specificity in the pleading, suspended discovery, and an award of costs to the successfully moving party. To prevent future SLAPP suits, the statute should include a specific authorization for serious penalties and accompanying SLAPP-back suits. Together, these elements provide a quick and cost-effective escape route for targets of SLAPP suits and may even discourage filers from attacking the target's First Amendment Right to Petition in the future....Courts should treat special motions to dismiss as final summary judgment motions with a time period appropriate for expedited motions. As with typical motions for summary judgment, if a trial court denies the motion or fails to rule in a speedy fashion, then a moving party should have a right to an expedited appeal. Further, all discovery should be stayed pending a decision on the motion and appeals. A method for early review and a stay of discovery greatly reduces the time commitment and the financial resources needed to combat the SLAPP suits, thereby lessening the chill effect on petitioning activity....
Regardless of whether a statute contains a probability standard for the motion to dismiss or a standard developed from the Mountain Environment or Omni decisions, every state with an anti-SLAPP statute except Delaware, Tennessee, Oklahoma, and Washington, includes some form of early review. If enacted properly, special motions to dismiss are quick, cheap methods to cut off harassing discovery and ensure quick closure.
I understand that there is a move afoot to pass a comprehensive, effective SLAPP law for Oklahoma. This is something that should have overwhelming bipartisan support.
More SLAPP shots:
- California Anti-SLAPP Project: Survival Guide for SLAPP Victims, which has a good description of how a SLAPP suit serves "as a means of transforming public debate into lawsuits."
- SLAPP Resource Center: Frequently Asked Questions
- Judith Miller writes in City Journal about how anti-SLAPP statutes in California, Massachusetts, and Minnesota protected critics of Islamist organizations from being SLAPPed: "While authoritarian regimes silence critics by murdering or jailing them, journalists (and other critics) in the United States face gentler, but still effective, intimidation: libel lawsuits." Two of the three cases mentioned involve the Speech clause, rather than the Petition clause.
- A blogger in India writes that industry there uses SLAPP suits to silence critics.
- Portsmouth, Ohio, blogger Robert Forrey writes about efforts by a local city councilor to SLAPP him into silence.
- A threat to pursue Who Owns Tulsa? for violations of the Fair Housing Act looked very much like a SLAPP action.
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I agree there ought to be some "first look" mechanism to dispose of these SLAPP suits quickly, maybe something like a temporary restraining order criteria which I believe is "a likelihood of success on the merits."
I'm very pessimistic/cynical about all this.
We elect judges in Oklahoma, so I'm not sure that motions to dismiss (which arguably ought to be rare) are actually very compatible with elected judges. I'd love to see some data on that, but there will probably never be any.
In line with that thought - How could a local media outlet (in one of the small backwoods counties in Oklahoma, for instance - certainly not the metropolitan areas) endorse a judge that sua sponte goes around granting motions to dismiss?
This has encouraged me to write my representative. Thanks for the post.
Minnesota has an inadequate SLAPP law by virtue of its narrowness of purpose.
After a four year defamation suit by a doctor I reviewed, a blogger, Skeptical Scalpel, published a conversation I had with him.
Excerpts:
Are you familiar with a case in Minnesota where a doctor sued a patient’s son for defamation over a negative review he posted? Dr. David McKee’s defamation lawsuit, a 4-year legal battle ended up in the Minnesota Supreme Court. The story recently came up again because BuzzFeed posted an article entitled “Insult And Injury: How Doctors Are Losing The War Against Trolls†discussing how doctors are having trouble defending themselves against negative reviews.
I tweeted a link to that article, and Dennis K. Laurion, whose father was the patient in the Minnesota, case wrote to me. He says no one ever asks him about his side of the story. He’s agreed to let me publish his comments:
[Laurion comments] This entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular†comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion†in public documents.
While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.
What it’s like for a patient or family member to be caught up in a case like this was already described by the plaintiff’s lawyer in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,†August 27, 2001, and repeated here. It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,†said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements…yet very few [cases] go all the way to trial and verdict.â€
The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income—the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.
After receipt of a threat letter, I deleted my Rate-Your-Doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings—only the news coverage.
It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what, if any, impact it had on them: insensitive doctor or overly-sensitive consumer?
Medical peer newsletters or magazines that interviewed the plaintiff did not approach me.
Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit for fear of creating the “Streisand Effect.†As a retired layman, I brought far less resources to the battle of financial attrition.
I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.†That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.†However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort. [Laurion comments end]
[Skeptical Scalpel] I very much appreciate your email and the clarification of your situation. I hope you realize that I personally took no side in the dispute you had with Dr. McKee. While spending nearly 24 years as a surgical chairman, I learned that there are always two sides to every story.
[Laurion] Thanks, Doctor, for the courtesy of your reply. I do, in fact, realize that you just tweeted the existence of the article.
[Skeptical Scalpel] I agree that most of the stories about your case tended to sympathize with the doctor and that his defamation suit brought far more attention to him and his behavior than if he had simply let it go. I have some questions. Is the litigation completely over?
[Laurion] Yes. For a while, the plaintiff threatened, mostly in settlement demands, to sue me for 500+ remarks made on Reddit.com. His “proof†was that most of the remarks came from Duluth, and I live in Duluth. (He also lives and works in Duluth.) He threatened to subpoena IP numbers and sue every poster, presumably all my relatives and friends, if I didn’t settle. I hadn’t posted to Reddit, I don’t know anybody who did, and nobody ever asked my ISP for my IP number or browsing history. The statute of limitations has now passed.
[Skeptical Scalpel] If so, did you win the case?
[Laurion] I won dismissal with prejudice from the Minnesota Supreme Court; he won the right to make me spend $56K I didn’t have. Minnesota allows “hip pocket lawsuits.†The plaintiff served me but didn’t file in court. He almost immediately asked my insurance company for a settlement, apology, and confidentiality agreement. This lawsuit was apparently supposed to last 3 weeks and never be filed in court; however, my insurance company doesn’t offer me defamation coverage, and, rather than reply only to the plaintiff, I filed my reply through the court, putting the suit into public record and the attention of newspapers.
[Skeptical Scalpel] Do you have any recourse as far as say, counter-suing Dr. McKee?
[Laurion] No. In Minnesota, each party is responsible for their own legal fees. Dr. McKee had to reimburse me about $2000 of filing fees and printing costs. I’d have contemplated a suit for abuse of process, but the Appellate Court’s decision not to dismiss tended to dilute my complaint.
[Skeptical Scalpel] Are you familiar with strategic lawsuit against public participation(SLAPP) lawsuits? If I recall correctly, your case took place in Minnesota which has an anti-SLAPP law.
[Laurion] I wanted my lawyer to file a SLAPP motion, but Minnesota SLAPP law only applies to actions that are wholly or in part government petitions. The plaintiff’s lawyer only charged me for my internet rating site reviews and my letter to the hospital. The complaint avoided any mention of my letter to the Medicare Ombudsman, the County Health Department, or the Minnesota Board of Medical Review; however, my comments to those sources were quoted in briefs and newspaper comments.