Journalism: February 2009 Archives

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.