SLAPP Lawsuits

You asked if any New England states prohibit the filing of Strategic Lawsuits Against Public Participation (SLAPP). If no New England states prohibit such lawsuits, what states outside our geographic area prohibit such cases? You also asked for two examples of SLAPP lawsuits.

Strategic Lawsuits Against Public Participation (SLAPP lawsuits)—are civil complaints or counterclaims against either an individual or an organization in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U. S. Constitution or comparable provisions of state constitutions. SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals or organizations that oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.

Critics of SLAPPs claim they even though they are legally without merit, they nonetheless often achieve their principal purpose of chilling or ending public debate on specific issues. Defending a SLAPP can require substantial money, time, and legal resources and thus can divert the defendant's attention away from the public issue. In addition, critics claim that a SLAPP also warns others that they can be sued also.

According to the California Anti SLAPP Project (CASP), every year thousands of people are hit with SLAPPs for such activities as writing a letter to a newspaper, reporting misconduct by public officials, speaking at public meetings, filing complaints with officials over violations of labor or health and safety laws, "whistle-blowing" in corporations, or organizing tenants.

Three New England states (Maine, Massachusetts, and Rhode Island) have anti-SLAPP laws. They follow the same general pattern. They allow the victim of a SLAPP to file a motion asking the court to dismiss the suit, which has the effect of temporarily freezing the suit until the court rules on the motion.

In Maine and Massachusetts, the law requires the court to grant this motion unless the party against whom the motion was filed shows that:

1. there was no factual basis for the party filing the motion to claim he was exercising a constitutional right or that he suffered any actual injury, and

Under Rhode Island law, a party's exercise of his or her state or federal right of petition or free speech in connection with a matter of public concern is conditionally immune from suit unless the petition or free speech constitutes a sham. The petition or free speech will be deemed a sham only if it is both:

1. objectively baseless because no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome and

2. subjectively baseless because it is actually an attempt to use the governmental process itself for its own direct effects.

At least 21 other states have also enacted some form of legal protections against SLAPPs. They are Arkansas, Delaware, Florida, Georgia, Hawaii, Indiana, Louisiana, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Washington, and West Virginia.

The following information was taken directly from the The First Amendment Project's website. The project is a nonprofit, public interest advocacy organization that seeks to protect and promote freedom of information, expression, and petition.

Generally, a “SLAPP” is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials, and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, or interference with contract or economic advantage, as a means of transforming public debate into lawsuits.

Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they can still succeed in the public arena because defending a SLAPP often requires a substantial investment of money, time, and resources.

Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:

6. complaining to school officials about teacher misconduct or unsafe conditions in the school

In Hometown Properties, Inc. v. Fleming (680 A 2d 56 (1996)), landfill owners sued a person who submitted written statements to state and federal officials concerning potential environmental concerns resulting from landfill activities.

The plaintiffs owned a landfill in North Kingstown, Rhode Island. On two occasions a number of North Kingstown residents, including the defendant, participated in meetings with the director of the Rhode Island Department of Environmental Management (DEM). The meetings focused on two issues: (1) alleged ground-water contamination caused by landfills, specifically plaintiffs' landfill, and (2) DEM's proposed rules and regulations concerning landfills. Following these meetings, the defendant wrote a letter to the director and posted copies to various state and federal officials. Among other things the letter alleged that the landfill contains hazardous waste, that the landfill continues to contaminate offsite groundwater exceeding Maximum Contamination Levels, that the landfill should be closed and cleaned-up, and that onsite monitoring wells were never purposely placed to detect contamination.

In response, the plaintiff, through its counsel, informed the defendant by letter that if she did not either (1) provide the specific facts and documents on which her statements were based or (2) confirm in writing that she will promptly furnish a retraction to the director and the other officials the retraction then it would have no alternative but to pursue the formal legal remedies.

The defendant did not retract her statements, and the plaintiff subsequently sued her, alleging defamation and tortious interference with contractual relations and sought compensatory and punitive damages.

The defendant filed a motion to dismiss the lawsuit alleging it was a SLAPP suit. The Superior Court denied the motion. But the Supreme Court in construing the state's anti-SLAPP statute for first time, ruled that (1) the statute was constitutional; (2) people could not circumvent the statute by including defamation as part of their lawsuit; and (3) as a matter of law, the person who was sued did not engage in any sham activity and was protected by the anti-SLAPP statute.

In a subsequent Rhode Island case, a school building committee member filed a lawsuit alleging libel and false light against the author of letters to the editor of a local newspaper concerning the committee's handling of proposed school building project. The author claimed that he had noticed what he would call a “close” relationship between a member of the school building committee and the construction manager.

The Superior Court granted summary judgment for the author because the letters were immune under the state anti-SLAPP statute (Alves v. Hometown Newspapers, Inc. 857 A. 2d 743, (2004)). The court concluded that the letters were prototypical examples of a protected exercise of free speech in a public forum on an issue of public concern and entitled to immunity under the anti-SLAPP statute.

Under Maine law, when a person involved in civil litigation believes that a claim, counterclaim, or cross claim against him is because he exercised his right of petition under the state or federal constitution, he may file a special motion asking the court to dismiss it. The court must hear and decide this motion as soon as possible.

(A “counterclaim” is a civil defendant's court papers that allege that it was the plaintiff, not the defendant, who committed legal wrongs and that as a result it is the defendant who is entitled to money damages or other relief. Usually filed as part of the defendant's answer, which also denies plaintiff's claims, a counterclaim is commonly but not always based on the same events that form the basis of the plaintiff's complaint. )

(A “cross claim” is legal paperwork that a civil defendant files to initiate his own lawsuit against the original plaintiff, a co-defendant, or someone who is not yet a party to the lawsuit. A cross-complaint must deal with the same events that gave rise to the original lawsuit. )

The law requires the court to grant this motion, unless the party against whom the motion was filed shows that

1. there was no factual basis for the party filing the motion to claim he or she was exercising a constitutional right or that he or she suffered any actual injury, and

In making its determination, the court must consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The attorney general on the attorney general's behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed may intervene to defend or otherwise support the moving party on the special motion.

The filing of the motion automatically stops the “discovery process”. (Generally the “discovery process” refers to the efforts of a party to a lawsuit to obtain information before trial through demands for certain documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights. )

But the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. Otherwise discovery may only resume when the court rules on the motion.

The special motion to dismiss may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms the court determines proper.

If the court grants a special motion to dismiss a claim, counter claim or cross complaint, it may award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.

1. any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding;

3. any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body, or any other governmental proceeding;

4. any statement reasonably likely to enlist public participation in an effort to effect such consideration; or

5. any other statement falling within constitutional protection of the right to petition government.

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against him are based on the exercise of its right of petition under the state of federal constitution he or she may bring a special motion to dismiss. The court must advance any such special motion so that it may be heard and determined as expeditiously as possible. The court must grant such special motion, unless the party against whom such special motion is made shows that:

1. the moving party's exercise of the right to petition was devoid of any reasonable factual support or any arguable basis in law and

2. the moving party's acts caused actual injury to the responding party.

In making its determination, the court must consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The special motion to dismiss may be filed within sixty days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.

1. written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding;

3. statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding;

4. 4. statement reasonably likely to enlist public participation in an effort to effect such consideration; or

5. other statement falling within constitutional protection of the right to petition government.

The law authorizes the attorney general, on his behalf or on behalf of any government agency or subdivision to which the moving party's acts were directed, to intervene to defend or otherwise support the moving party on such special motion.

All discovery proceedings are stayed upon the filing of the special motion; provided that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the special motion.

If the court grants the motion to dismiss, the court must award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.

1. full participation by persons and organizations and robust discussion of issues of public concern before the legislative, judicial, and administrative bodies and in other public places are essential to the democratic process,

2. there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; and

3. such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern.

Under Rhode Island law, a party's exercise of his or her state or federal right of petition or of free speech in connection with a matter of public concern is conditionally immune from civil claims, counterclaims, or cross-claims. This immunity bars any civil claim, counterclaim, or cross-claim directed at a petition or free speech as defined by law, unless the petition or free speech constitutes a sham.

The petition or free speech constitutes a sham only if it is not genuinely aimed at procuring a favorable government action, result, or outcome, regardless of the ultimate motive or purpose. The petition or free speech will be deemed to constitute a sham only if it is both:

1. objectively baseless because no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome, and

2. subjectively baseless because it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects.

The law defines “a party's exercise of the right of petition or of free speech” as:

1. any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding;

2. any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or

3. any written or oral statement made in connection with an issue of public concern.

The law requires the court to stop all discovery proceedings in the action upon the filing of a motion asserting the statutory immunity. But the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the motion.

If the court grants the motion asserting the immunity, or if the party claiming lawful exercise of his or her rights eventual prevails at trial, the court must award costs and reasonable attorney's fees, including those incurred for the motion and any related discovery matters. The court must award compensatory damages and may award punitive damages if he proves that the responding party's claims, counterclaims, or cross-claims were frivolous or brought with the intent to harass the party or otherwise inhibit his or her exercise of the constitutional right to petition or free speech. The law specifies that it does not affect or preclude the right of the party to any remedy otherwise authorized by law.

Participation in a zoning hearing or other proceeding by a party shall not be a cause for a civil action or liability except for acts not in good faith, intentional misconduct; a knowing violation of law, transactions where there is an improper personal benefit; or malicious, wanton, or willful misconduct.


August 14, 2007		2007-R-0463
SLAPP LAWSUITS

By: George Coppolo, Chief Attorney