By Jack Grauer
It can be dangerous to criticize powerful people. When Queen Elizabeth took issue with a pamphlet questioning her proposed marriage to the Duke of Anjou, she had the author’s hand cut off in the town square. This stuff still happens, though the executioner has since ceded his role to the lawyer.
The latter prefers defamation claims over the cleaver where possible.
Legal bureaucracy makes a fine weapon on its own accord. Scholars coined the phrase “Strategic Lawsuit Against Public Participation” (SLAPP) in the 1990s. SLAPPs use the legal process itself as the Elizabethan cleaver without concern for the eventual finding of fact that a trial is intended to produce.
SLAPPers who file defamation lawsuits intend only to rack their adversaries’ nerves with expensive pre-trial negotiations. They’ll often dismiss cases once legal-bureaucratic revenge has been exacted.
Attorneys famously deposed a CBS News documentarian 26 times and produced a 3,000-page transcript during 10 years of litigation in a suit brought by a former US Military colonel. The colonel claimed CBS misrepresented him in a 60 Minutes episode. The ordeal cost CBS about $4 million in legal fees and lasted almost 10 years. A judge dismissed the case in 1986 before trial.
Protections against SLAPP lawsuits vary by state. Pennsylvania has two relevant pieces of law.
42 Pa.C.S. § 8351 lets you countersue to recover fees if someone SLAPPed you but lost in court. Though, as explained above, SLAPPs can do plenty of damage without trial. 27 Pa.C.S. § 8301 offers SLAPP defendants immunity earlier in the legal process, but this second set of rules only applies in situations involving the production, implementation or enforcement of environmental law.
Senator Larry Farnese last year sponsored a bill to strengthen Pennsylvania’s anti-SLAPP protections. Senate Bill 95 would give SLAPP suit defendants the ability to file a motion to dismiss before the discovery phase. Unlike § 8351, SB 95 doesn’t limit to any specific scenario.
The Pennsylvania Senate approved SB 95 but it got stuck in the House of Representatives. Mark Shade, a press contact for Farnese, said they’re now waiting for a committee chairman in the House, “which is currently owned by Republicans, to call it for consideration again.” Farnese is a Democrat.
“The bill passed last June in the middle of the budget stalemate,” Senator Farnese said in a recent phone interview. “Nothing was really moving while we were negotiating. We weren’t able to get anything passed. But we’ve re-started conversation in this legislative cycle.”
Obviously, not everyone likes the bill. “I disagree with the idea that there needs to be any additional protection for SLAPP defendants,” said attorney David Heim of law firm Bochetto & Lentz. “To my knowledge, similar laws in other states don’t give the broad immunity this statute would grant.”
Heim also argued that SB 95 relies on “an overly broad definition of constitutionally protected communication,” protecting more speech than necessary to protect public participation.
Some see SB 95’s open-ended language as a flaw that will hamper and complicate future courts’ decisions. Others argue the diverse nature of SLAPP suits means that laws to protect against them by necessity must be broad. Landlords SLAPP tenants; priests SLAPP the families of children that claim sexual abuse, etc.
“There is no single definition of a SLAPP lawsuit,” explained attorney Michelle Grant, Regional Vice President of the National Lawyers Guild. “There are all kinds of lawsuits and threats of lawsuits that exert that effect,” she said.
Andy Hoover, Legislative Director of the American Civil Liberties Union of Pennsylvania, concurred that this type of legislation needs to stay flexible.
Hoover also suggested the protections SB 95 affords SLAPP defendants should extend even further than it would in its current version. “The subject of the SLAPP suit should get punitive and compensatory damages,” he said. “The way the bill is written, defendants only receive attorneys’ fees and costs.”
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