What are SLAPPs? (Strategic Lawsuits Against Public Participation)
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Ultimately, most SLAPPs are not legally successful. Nevertheless, while most SLAPPs do not succeed in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect "chills" public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP defendants -- other people refrain from speaking out on issues of public concern because they fear being sued for what they say.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where both the cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.
Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:
Writing a letter to the editor
Circulating petitions
Calling a public official
Reporting police misconduct
Erecting a sign or displaying a banner on their property
Complaining to school officials about teacher misconduct or unsafe conditions in the school
Speaking at a public meeting
Reporting unlawful activities
Testifying before Congress or state legislatures
Speaking as an officer of an active public interest group
Filing a public interest lawsuit
SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following:
Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.
Invasion of Privacy. This refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.
Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process."
Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.
Interference With Contract or Economic Advantage. This is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons.
Intentional Infliction of Emotional Distress. This is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.
Nuisance. This includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
Injunction. The lawsuit seeks a temporary restraining order or an injunction against First Amendment activity
This list is not exhaustive. Neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.
