Nonprofits Active in Efforts to Prevent Use of Courts to Discourage Public Participation

Nonprofit organizations have recently been active in efforts to prevent the use of lawsuits designed to discourage public participation. Nonprofits across the country have played a role in the campaign to eliminate Strategic Lawsuits Against Public Participation (SLAPPs). These efforts coincide with a pending legislative proposal to combat SLAPP suits on the federal level.

SLAPPs are "meritless lawsuits brought on the basis of speech or petition activity" and "silence and punish those who engage in public participation, chilling speech that is essential to the functioning of our democracy and to the public interest," according to the Federal Anti-SLAPP project.

SLAPPs are increasingly getting more attention due to the chilling effect that they have on the speech rights of individuals and organizations. Both national and local nonprofits are active in the anti-SLAPP movement.

Many organizations have taken the lead in bringing this issue to a larger audience. The Citizen Media Law Project [1] has blogged about a case involving an ex-congressman who sued an individual for defamation after a court ruling revealed the individual’s identity. That individual had commented anonymously on the ex-congressman’s online news article. The case was dismissed [2] as a result of New York State's anti-SLAPP law.

Nonprofits are also involved in helping to defend against SLAPPs. The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the First Amendment Project, Public Citizen, and the California First Amendment Coalition are some of the organizations that are assisting individuals and organizations when SLAPPs are filed. For example, EFF has represented individuals and obtained dismissals by citing state anti-SLAPP statutes in cases involving anonymous posting on blogs and websites. Similarly, the ACLU represented the sponsor of a successful California ballot initiative that made marijuana use Santa Barbara's lowest law enforcement priority after the city sued the initiative sponsor.

The City of Santa Barbara filed suit in the marijuana case challenging the constitutionality of the initiative, which was passed by two-thirds of Santa Barbara voters. The ACLU argued [3] that, "While the City is free to challenge the duly enacted initiative – however baseless its claims – it cannot name [the initiative sponsor] as the defendant solely because she exercised her right to sponsor a petition that the voters enacted. California law protects defendants like [the initiative sponsor], sued in their capacity as participants in the political process, from strategic lawsuits against public participation ("SLAPP")."

The nonprofit organizations involved in the anti-SLAPP movement have highlighted various methods to defend against SLAPPs. Often, the first step is to determine if others have been hit with the same SLAPP and, if so, to strategize together. If the SLAPP was filed due to an individual’s vocal opposition, it is common for the filer to sue all opponents, according to the California Anti-SLAPP Project. Informing the media and getting positive coverage is another technique used to defend against SLAPPs. SLAPPs are also a way to retaliate against public interest lawsuits, so organizations that are regularly involved in such suits should be prepared for such actions. Additionally, having other organizations join a lawsuit can be helpful in preventing a SLAPP counterclaim. "Often, the mere existence of several groups opposing a single project or opponent can add a note of importance to your lawsuit," according to the California Anti-SLAPP Project.

Individuals and organizations can prevent becoming a SLAPP target by being knowledgeable about anti-SLAPP statutes, checking homeowner and business insurance policies and being aware of what is covered, making sure that all statements are factually accurate, and seeking legal advice if there is uncertainty concerning whether planned written or oral statements may subject the individual or organization to a lawsuit.

On the federal level, Rep. Steve Cohen (D-TN) plans to sponsor anti-SLAPP legislation during the 111th Congress. The Citizen Participation in Government and Society Act of 2009 [4] will prevent individuals or groups from using the federal court system to intimidate or discourage citizens from public participation. Many nonprofit groups have signed on as supporters of the proposed legislation, including OMB Watch, the Natural Resources Defense Council, the Alliance for Justice, Public Citizen, and the Center for Science in the Public Interest. Cohen also sponsored anti-SLAPP legislation in Tennessee when he was a state senator.