Report — From the March 2018 issue

Empty Suits

Defamation law and the price of dissent

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In the late Seventies, an Environmental Defense Fund attorney named Rock Pring began to notice something unusual. With alarming frequency, corporate polluters were suing environmentalists who had spoken out or filed lawsuits against them. A few years later, Pring, by then a law professor at the University of Denver, set out with a sociologist colleague named Penelope Canan to study the phenomenon. In a 1988 paper, they came up with a name for these cases: “strategic lawsuits against public participation.” SLAPPs target people or organizations that have spoken out on matters of public concern. Their operational logic is grounded in resource asymmetry — wealthy, often corporate plaintiffs pursuing defendants of modest means, frequently activists. Instead of engaging with their less moneyed critics, the plaintiffs resort to the legal system to intimidate and silence them.

Because they target speech, SLAPPs often take the form of defamation lawsuits. The modern tort of defamation — false speech that harms another person’s reputation — has its roots in historical efforts by the powerful to insulate themselves from the destabilizing influence of bad PR. In 1275, a formative British defamation statute forbade anyone to “be so hardy to tell or publish any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm.” No fake news, in other words, that hurts the king’s ratings.

Downtown Uniontown

In the United States, the First Amendment stripped the tort of this dissent-crushing rationale. To prevent the powerful from stifling public debate, the Supreme Court has over the years placed significant hurdles in the way of government officials and public figures who hope to win defamation suits. For example, it’s not enough to show that a statement is untrue. A public figure has to prove that the defendant made the statement with “actual malice” — that the defendant lied or had a very good reason to doubt the statement’s truth. Government officials and public figures, the reasoning goes, neither need nor deserve the same legal protections as private citizens.

But that conception of the First Amendment is of recent vintage. Despite its apparent absolutism — “Congress shall make no law . . . abridging the freedom of speech” — the First Amendment’s speech clause was little more than a bookend to the Bill of Rights until the twentieth century. Judges and legal scholars began to hazard that the amendment might actually mean something only after witnessing the imprisonment of antiwar dissenters and the censorship of media channels by the government’s propaganda machine during World War I.

In 1964, the expanding speech protections of the First Amendment reached the law of defamation, putting new legal obstacles in the path of anyone who would sue for libel or slander. L. B. Sullivan, a public safety commissioner in Montgomery, Alabama, had filed a lawsuit claiming that an advertisement a group of pastors and civil rights activists had placed in the New York Times was defamatory. The ad denounced police treatment of blacks in Montgomery and solicited money to defend Martin Luther King Jr. against spurious state perjury charges. Although the ad contained factual inaccuracies, the Supreme Court ruled in favor of the defendants in New York Times v. Sullivan. “Erroneous statement is inevitable in free debate,” Justice William Brennan wrote. “It must be protected if the freedoms of expression are to have the ‘breathing space’ that they need . . . to survive.”

It didn’t take long for a convenient work-around to emerge. To succeed, SLAPPs don’t need to have much legal merit, and as a rule they don’t. “SLAPPs are losers in the courthouse but winners in the real world,” Pring told me. By capitalizing on the uncertainty and the cost — in time, energy, and money — of the litigation process itself, Pring and Canan observed in their 1996 book SLAPPs: Getting Sued for Speaking Out, the suits “encourage the active to return to the vast ranks of uninvolved and apathetic Americans.”

The wave of SLAPPs that Pring had detected in the late 1970s and early 1980s was part of a conservative backlash against the radical activism of the two previous decades. A coal mining company in 1980 sued a West Virginia environmentalist — described in the New York Times as a “blue-denimed vegetarian” — for $200,000 after he reported its illegal pollution to the EPA. The following year, the Shell Oil Company sued a California attorney for alerting regulators to lab results showing that pipes it manufactured contained a known carcinogen. In 1982, a nuclear power company in Maine filed a $4.5 million defamation lawsuit against a group that had campaigned for a statewide moratorium on the industry.

Ben Eaton, the vice president of Black Belt Citizens

This tactic faced resistance in the 1990s as legal reforms at the state level made it harder and more expensive for plaintiffs to litigate SLAPPs. Particularly effective was the enactment of so-called anti-SLAPP laws. These statutes end lawsuits fairly quickly by making it easier for courts to dismiss them, and can sometimes force plaintiffs to pay defendants’ legal fees.

But lately SLAPPs have made a comeback. Although there is no precise way to count them — lawyers don’t typically announce that they’re filing “strategic lawsuits against public participation” — examples abound. Business owners have targeted the writers of critical online reviews with abandon. Public figures displeased with negative press have been unusually quick to drag journalists into court. Politicians have taken to suing opponents over attack ads. In 2010, the for-profit Trump University sued Tarla Makaeff, a former student who had filed a class action fraud suit against the school, over what it called defamatory criticism in letters to government agencies and posts on a consumer website. Makaeff prevailed after years of litigation but decided to withdraw from the class action, which was settled this spring. The president, of course, is a prodigious practitioner of SLAPP tactics. When he professes a desire to “open up libel laws,” what he means is that he wants to make it easier to litigate SLAPPs.

In reaction to this renaissance, no fewer than six states have enacted or strengthened anti-SLAPP laws since 2014, bringing the total number of states with anti-SLAPP legislation on the books to thirty-two. But free-speech advocates still face significant opposition from critics who argue that such statutes impede a plaintiff’s constitutional right to access the court system. Several state courts have come to agree in recent years, striking down anti-SLAPP laws. At the same time, a series of opinions by influential federal judges has brought into question whether defendants can rely on state anti-SLAPP laws in federal courts.

A hand-carved grave marker at the historic African-American cemetery

The new generation of SLAPPs poses a particularly grave threat to community activism. SLAPPs today imperil this key democratic institution at a precarious moment for other mechanisms of government and corporate accountability at the state and local levels. The question is whether community activists will join the likes of small newspapers and, for the foreseeable future, federal regulators — another tapering channel of local oversight — or retain their vitality as what one federal court recently called “the lifeblood of a self-governing people’s liberty.” What happened in Uniontown is a window onto one possibility.

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is a senior reporting fellow at ProPublica. He lives in New York City.

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October 2018


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