Consumer Corner: SLAPP lawsuits are bad for business

By Alan Marx, AARP Tennessee consumer watchdog

WHAT IS A SLAPP SUIT?
As the art of proofreading declines, spelling errors become very common. “Slap,” meaning a smack, is spelled with one “p,” but the spelling in the headline above is not a mistake. The subject of this month’s blog is spelled with two “p’s.” SLAPP is an acronym for Strategic Lawsuits Against Public Participation.

SLAPP lawsuits target members of the public, businesses, and media who seek to provide truthful information and express positions to the government on issues of public interest. The goal of SLAPP lawsuits is to discourage debate, censor opposing views, and to chill, intimidate, and silence critics by abusing the legal system. The targets of these lawsuits are confronted with the significant cost of defending the lawsuits. Preventing the expression of dissenting opinions backed by the provision of truthful information to the government on issues of public policy is inimical to the functioning of democracy. The rights of free speech and the right to petition the government are found in the Bill of Rights and have been described as the very foundation of democracy.

SLAPP suits take many forms, including claims of defamation, tortuous interference with business, and violations of civil rights, antitrust or intellectual property laws, among others. Certainly legitimate claims can be and are filed under these causes of action, but not all filed claims are valid. Some are filed to prevent debate and to chill speech. The legal problem is how to distinguish between legitimate claims and abusive ones.

SLAPP lawsuits are not new. Over the years well-known defendants have had to defend against these types of lawsuits.

SLAPP SUIT EXAMPLES
For example, in 1996 Texas cattle ranchers sued Oprah Winfrey after she invited experts to appear on her show to discuss mad cow disease. The ranchers alleged that as a result of her actions they suffered damages of more than $12 million. Winfrey took the case went to trial, and after six weeks a jury found in her favor, but her expenses did not end there. The cattlemen appealed. Finally, after four more years the U.S. Fifth Circuit affirmed the ruling for her.

In another example, in 1989 the news program 60 Minutes was sued by some Washington State apple farmers over its broadcast of a story about alar, a chemical used in apple growing. The farmers alleged that they suffered more than $100 million in damages. 60 Minutes defended and won in the trial court on summary judgment. The farmers appealed. In 1994 the U.S. Ninth Circuit Court of Appeals finally upheld the ruling for 60 Minutes because the apple farmers could not show that the statements broadcast by 60 Minutes were false.

In 2004, Sharper Image sued the publisher of Consumers Union, the publisher of Consumers Reports, which had published an unfavorable review of a Sharper Image air cleaning system. Relying on the California Anti-SLAPP law, Consumer Union succeeded in getting the case dismissed. The court held that Sharper Image “ha[d] not shown that the test protocol used by Consumers Union was scientifically, or otherwise, invalid,” and had not “demonstrated a reasonable probability that any of the challenged statements were false.”

In these cases the defendants were successful, but it is significant that each of these defendants was able to get a day in court only because he or she could afford the very substantial expenses of the litigation. Unfortunately, for many and probably most defendants threatened with SLAPP suits the cost of defending is beyond their means. Reportedly defendants threatened with litigation or actually sued often have no choice other than to settle and abandon their positions or retract their statements.

The right to engage in public dialogue is very important. In many instances the parties on one side of an issue have economic interests that are not fully disclosed, or they may place little or no value on the environmental, health, social or ethical consequences of the changes they seek. The parties who take a different position should have the right to be heard. Truthful presentations of the issues have a value, even if they do not always win the day. The side that wins should be determined only after a full airing of the facts and consideration by the decision makers of those facts and discussion of their policy implications. If only one side is presented, democracy loses. SLAPP suits can never be in the public interest.