History of SLAPPs and the SLAPPback

A little mood music ....




John has shared a brief history of SLAPP lawsuits with us that has given me a desire to further explore the basis and workings of these types of actions.

We need to understand that the freedom to speak out against injustice was highly valued by our Founding Fathers. It was dissatisfaction with the crown, leading to rebellion that was one of the driving forces behind our independence.

Additionally, anonymous expression was practiced. The Federalist Papers, a series of 85 articles, published in various New York newspapers in the late 1700’s, were originally published under the pen name “Publius”. The authors of those documents – Alexander Hamilton, John Jay and James Madision – aimed to explain to the citizens of New York the newly drafted US Constitution, and to give insight into the intentions of the writers of the Constitution, inciting them to vote for acceptance of that Constitution.

During the Third Annual Pollution Law Conference held in Australia in 1991, participants were given a paper called “Legal Rights of Industry Against Conservationist” (Robert Jamieson and Ray Plibersek, `Legal Rights of Industry Against Conservationists', paper presented to Third Annual Pollution Law Conference, Sydney 28-29 October and Melbourne 30-31 October 1991.) They were told about tactics that were being used in the United States to intimidate or “chill-out” environmentalists. They were talking about using the judicial system (lawsuits) to scare people, or out spend them into ceasing the protests and another forms of dissent that were being used in attempts to dissuade the logging industry. Of course, our rights to free speech and petition, as well as assembly, are explicitly protected under the First Amendment, so they would list other grievances in these suits. Most often, defamation, conspiracy, nuisance, invasion of privacy or interference with business/economic expectancy are cited. Penelope Canan and George Pring, of the University of Denver, with funding from the US National Science Foundation had been studying these types of suits for several years, and are credited with labeling them “Strategic Lawsuits Against Public Participation”, or SLAPPs. The activists who were the targets of these suits we attempting to influence the government to take action in matters of public interest. SLAPPs were being filed against one side of a public debate against the other in an attempt to exact punishment, of sorts, on the opposition. What they were ultimately attempting to do was to bog people down in the legal process, effectively removing them from the debate.

Here is an encouraging statistic: Less than ten percent (10%) of these cases filed in the United States are won by the filer. Great news for us!

The bad news is – litigation is costly, both in dollars spent and in emotional energy. It takes time to defend yourself, even against frivolous lawsuits. One trial judge, quoted by Pring and Canan in 1993 said, “The conceptual thread that binds [SLAPPs] is that they are suits without substantial merit that are brought by private interests to "stop citizens from exercising their political rights or to punish them for having done so"...The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.”

Being sued carries a stigma, and most of us stringently avoid allowing ourselves to be placed in such a situation. That is precisely what makes these types of suits effective. Employing the tactic of names “Does” and Roes” is equally effective in limiting the speech of those not directly named, as there is the inherent threat that any one speaking out can also be named.

In my thinking, another detrimental effect of a SLAPP is to tie up resources reacting to the SLAPP, detouring attention from the original case. In our situation, that simply means that John Tiedt, the attorney for the Class Action against Heidi Diaz/Kimkins must turn his attention from preparation of the pending class certification hearing to answering the SLAPP. I don’t for one moment buy into the idea that the timing of this just happens to coincide with the writing of the brief.

Why, we want to know, does the court allow this to happen? How can one party be allowed to derail the judicial process this way?

Well, quite simply, they can not. The danger of allowing these types of suits to proceed unchecked and without merit has been addressed in almost every state. In California specifically, the legislature had this to say: “The Legislature finds and declares that 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. (CCP, Sec 425.16 (a) )

The Legislature, recognizing that targets of SLAPPs needed relief, specifically laid out consequences for those who bring them. Note, there ARE instances where such suits are warranted, but the standard is very high, and the burden clearly lies with the plaintiff to prove their case. In fact, they must be able to convince the judge that they actually have a good chance of prevailing in the action to even be allowed to continue once their case is challenged.

So, the SLAPPback was defined. Section 425.18. (a) The Legislature finds and declares that a SLAPPback is distinguishable in character and origin from the ordinary malicious prosecution action. The Legislature further finds and declares that a SLAPPback cause of action should be treated differently, as provided in this section, from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature's intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP (strategic lawsuit against public participation) litigation and by its restoration of public confidence in participatory democracy.
This is how the California Anti-SLAPP Project explains the SLAPPback: “This statute was enacted primarily to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed. It provides that the prevailing defendant attorney fee and immediate appeal provisions of the anti-SLAPP law do not apply to SLAPPbacks, and that an anti-SLAPP motion may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law. (History of statute: 2005 — Assembly Bill 1158 (Lieber), signed into law Oct. 5, 2005 by the governor and effective immediately (as urgency legislation).)”

English, please!

Ok, here’s the skinny. Basically, if the court finds that Heidi and her attorney filed this counter suit with the intention to intimidate us or to distract John from the business of filing the brief – if they are unable to justify their actions – the court SHALL, not the court MAY, but SHALL require Heidi’s attorney to pay all the costs and attorney fees that we rack up to defend against this. The way I understand it, these would be called sanctions. And, any sanctions against an attorney that reach the $2000 threshold are reported to the California Bar Association. Not the sort of thing that any lawyer who practices in the State of California wants to have happen.

Sweet :)

We, of course, are not there yet. Heidi and her attorney still have the option to withdraw this thing. But the clock is ticking, and we all know how time flies when we are having fun.

Heidi, if you weren’t a pathological liar, and if you hadn’t decided all those years ago to create a fantasy you, and if you had just come clean way back when people started to realize you were full of it … well, we all know it really IS too late to take that back!

I won’t tell you what the next blog installment is a going to be about specifically, since I’ve proven to myself that my writing just doesn’t flow that way  But there will be a next installment. Keep watching!

(Sources: Sharon Beder, 'SLAPPs--Strategic Lawsuits Against Public Participation: Coming to a Controversy Near You', Current Affairs Bulletin, vol.72, no. 3, Oct/Nov 1995, pp.22-29.; California Anti-SLAPP Project; California Code of Civil Procedure)