A SLAPP in the Face of American Civil Justice

Money works in abstract ways in our
society these days. If it can’t buy what it wants from the House and Senate (or
what passes these days for our Supreme Court), then it works to beggar the opposition
through lawsuits. Money doesn’t like
opposition and by god it increasingly has none.

Never mind that our tattered Constitution guaranties
our day in court. The Constitution never said it would guarantee citizens could
afford that day.
But that’s all preface.
Never heard of SLAPP? In this day of the
constant blizzard of acronyms, that’s not surprising. I read a lot of news and get
buried in that

snowbank, Googling my way through a half dozen or so acronyms to
try to make sense of the article. Who really knows, when PRM can mean Partner
Relationship Management, Parameter, Professional Risk Manager, Project Resource
Manual, Performance Reference Model, Public Relations Manager, Performance
Report Message or Pulse Ratio Modulation? And that’s a mere eight among the yet
another fifty-three possibilities? If it’s PRM on the CIA, it could mean a
performance report message on the Central Intelligence Agency, among another
8,000 other combinations. You get my
The particular SLAPP of which we speak
is the Strategic Lawsuit Against Public Participation and if that sounds pretty
un-American to you, it did to me as well. So I did what I do when confused,
Googled it and then followed that up with Wikipedia, which had this to say:
“A strategic lawsuit against public
participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and
silence critics by burdening them with the cost of a legal defense until they
abandon their criticism or opposition.”
Jesus, here in America and that kind of
nonsense is acceptable? Guess I
better grow up, but that’s pretty much what my old daddy called ‘beating the
little guy to death with litigation.
“The typical SLAPP plaintiff does not
normally expect to win the lawsuit. 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. A SLAPP is often preceded by a legal threat. The
difficulty is that plaintiffs do not present themselves to the Court admitting
that their intent is to censor, intimidate or silence their critics. Hence, the
difficulty in drafting SLAPP legislation, and in applying it, is to craft an
approach which affords an early termination to invalid abusive suits, without
denying a legitimate day in court to valid good faith claims.”
All beautifully laid out in
non-judgmental language, clouding what is clear, sifting flour into the broth. Crafting an approach, don’t you love it?
Crafting takes teams and years and lots of dough, so it’s that last line that’s
the core of the Wikipedia text. How do
we deter abusive lawsuits and still support valid good faith claims? So far, crafting hasn’t slowed the money crowd from
using law for opposing purposes–burying their critics in an avalanche of legal
costs. Are you really willing to go broke fighting Big Oil on the Keystone XL
Pipeline or fear of fracking (FOF, my personal acronym) in your back yard?
Which delivers us to my point and, I
know, it’s taken almost 500 words to do that.
SLAPP legislation may not hit your
personal pocketbook, but it deters others from risking their nest-egg and reputation
on your behalf. If you’re like me, you may feel strongly for or against some
environmental or health issue, but you’re not bloody likely to be out there in
the rain and cold, fighting for what’s right as you see it.
That puts American justice and the rule
of law very much on the line.
Recognizing that, twenty-eight states
(and the District of Columbia) have enacted anti-SLAPP legislation. By God the
states may step in and finally save us when our United States Congress can’t
find their ass with both hands. But that leaves twenty-two where these lawsuits
can be brought and Big Money has the deep pockets to ‘shop’ their lawsuit to a
favorable venue. Unfortunately, the suit doesn’t have to be brought in the
state where you reside or even where the complaint exists. So a common strategy
is ‘forum shopping,’ where the big guys hunt down courts and judges and juries to
their liking.
It’s a stacked-deck, both expense and
justice wise. As they say, “money talks, but it don’t sing and dance.” That part
in the musical is played by another Mo-Town robed bunch, the Supremes.
But we have fifty other Supreme Courts
in the states. New York Supreme Court Judge Nicholas Colabella said, “Short of a gun to the head, a greater threat
to First Amendment expression than SLAPPs can scarcely be imagined
New York is among the states with anti-SLAPP legislation. Come to think of it,
the only greater gun to our head I can think of is the machine gun the Supreme
Court gave corporations to express free speech with a megaphone.
But, what the hell, succumbing to fear,
intimidation, mounting legal costs or simple exhaustion is the new American

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