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Anti-SLAPP laws

Short for strategic lawsuits against public participation, SLAPPs have become an all-too-common tool for intimidating and silencing critics of businesses, often for environmental and local land development issues.

An “anti-SLAPP” law is meant to provide a remedy from SLAPP suits. Under most such statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must make more than allegations of harm and actually show that they have evidence that can result in a verdict in their favor. If the defendant prevails on the motion, many of the statutes allow them to collect reasonable attorney’s fees from the plaintiff.

When a plaintiff brings a SLAPP lawsuit against someone attempting to exercise their right of free speech, it is usually under the guise of a defamation claim. However, as SLAPP defense attorneys and anti-SLAPP law advocates Peter Kurdock and Mark Goldowitz point out in their September article “The Need for Federal Anti-SLAPP Legislation” posted on www.sitejabber.com, it could just as easily come as an accusation of conspiracy or trademark infringement.

The goal of plaintiffs in these cases is not necessarily to actually win the lawsuit, but to drag their critics to court and bury them under a pile of attorney’s fees and embarrassment until they cry “uncle!” and agree to be quiet, anti-SLAPP law advocates said.

“SLAPPs aren’t just random meritless lawsuits,” Kurdock and Goldowitz wrote. “They are lawsuits that directly attack First Amendment rights.”

One of the many examples of a suit that was struck due to an anti-SLAPP law involves, unfortunately and somewhat paradoxically, a controversial newspaper publisher who sued a magazine writer over a profile of the publisher.

Freelance journalist Susan Paterno’s American Journalism Review story about Wendy McCaw’s purchase of the Santa Barbara News-Press — and the subsequent wave of defections amongst the paper’s seasoned editors and writers — mentioned several lawsuits McCaw had filed or threatened to file against her former and current employees and other publications like the Santa Barbara Independent and Vanity Fair.

What Paterno didn’t know was that she would soon be the target of one.

“I was kind of surprised because it had been through so many layers of lawyers — my brother, a contracts attorney, couldn’t believe it,” said Paterno, a professor at California’s Chapman University, recalling the day she received word of the suit. “From the very beginning I always knew she had nothing to sue me about. There was nothing libelous in the story.”

Though McCaw’s company, Ampersand Publishing, sued Paterno on multiple claims, it was mainly for allegedly libelous statements in the articleBut thanks to California’s law against Strategic Lawsuits Against Public Participation, or anti-SLAPP law, Paterno was able to obtain a prompt dismissal of the lawsuit last summer.

Anti-SLAPP statutes are meant to protect people from lawsuits of questionable merit that are often filed to intimidate speakers into refraining from criticizing a person, company, or project. Fighting these suits can be a time-consuming and expensive enterprise. Paterno thinks the anti-SLAPP statute saved her from mortgaging her house to pay legal bills, because it allowed her to recoup most of her attorney fees after the suit’s dismissal.

“The law allowed me to avoid what could have been millions of dollars in legal fees,” Paterno said. “I was blessed that AJR was amazing and they picked up every penny of this horrible, frivolous, revenge-driven lawsuit when it was going through the courts.”