Newer laws give media means to 'SLAPP' back in libel suits

Newspaper Research Journal, Spring 2002 by Bunker, Matthew D, Gates, Paul H Jr

This legal analysis finds the new wave of antiSLAPP statutes in some states might become a powerful weapon for media defendants in libel suits.

When Clinton White House aide and former journalist Sidney Blumenthal sued Internet gossip columnist Matt Drudge for defamation, Drudge's defense included a rather novel claim in addition to the usual libel defenses. Drudge contended that the Blumenthal suit was a "Strategic Lawsuit Against Public Participation" (SLAPP) and should be dismissed in accordance with the California Anti-SLAPP statute. Although a federal court ultimately rejected Drudge's defense because of its tardiness, among other reasons,1 the case is one of a number of recent cases in which an anti-SLAPP statute defense has been raised and thus suggests the increasing importance of anti-SLAPP statutes in what were formerly regarded as basic defamation or other tort actions brought against media defendants.

In another case that garnered national publicity, two City College of San Francisco professors who had sued teacherreview.com, a web site that allowed anonymous posters to rate professors, dropped their defamation suit against the site in October 2000 and agreed to pay $10,000 in attorney's fees to the Web site owner.2 The plaintiff-professors agreed to the unusual settlement after attorneys for the web site owner moved to dismiss the case and sought more than $100,000 in attorney's fees under the California Anti-SLAPP statute. A statute that results in a libel plaintiff offering a monetary settlement to a defendant in order to drop the litigation has clearly altered the rules of the game dramatically.

In the 1980s and 1990s, legal scholars began for the first time to focus on SLAPPs, often meritless lawsuits brought primarily to silence opponents through intimidation rather than to vindicate genuine legal rights. These lawsuits, often brought by corporate entities such as real estate developers against citizens opposing development, were not always easy to identify, but most scholars agreed that genuine SLAPPs caused significant harm to democracy, particularly to the First Amendment rights contained in the free speech and petition clauses.3 Although defendants ultimately won many of these suits, the cost of defending them and the possibility of huge damages often led to defendants' withdrawing from the public controversy that precipitated the lawsuit.4 The suits thus often achieved their objective - the defendant had been "SLAPPed."

Beginning in the late 1980s, a number of states began passing anti-SLAPP statutes, many of which enabled SLAPP defendants to obtain an early dismissal of a SLAPP suit. Some of the statutes also allowed the court to require the plaintiff to pay the defendant's attorney's fees. One (presumably) unintended consequence of these statutes was that at least some of them could be interpreted to allow media defendants to take advantage of their provisions. That is, although the paradigm SLAPP suit involved a citizen activist sued by a corporate foe, the statutory language of at least some anti-SLAPP laws was capacious enough to allow the press reporting on public controversies to employ the statute if it became a defendant as a result of the coverage. In at least one state, California, the anti-SLAPP statute has become an important weapon in the media's arsenal against defamation and related causes of action.

This article will first provide a brief history of SLAPPs and attempts to counter them. Next, it will explore some of the particulars of anti-SLAPP statutes that have been passed to date. The article will then analyze developing legal doctrine as media defendants attempt to use anti-SLAPP statutes as a new line of defense against defamation and related tort claims. Finally, the article will offer concluding perspectives on this new legal development. Because the authors have found no other scholarly literature exploring this issue directly, it is hoped that this article will provide a useful first look at the issues involved in press use of these statutes.

A Brief History of SLAPPs

Public participation and citizen involvement in governance is an axiom of representative democracies, encouraged in the United States by a variety of legal and cultural norms and specifically enshrined in the petition clause of the First Amendment to the United States Constitution.5 That constitutional provision protects peaceful, legal efforts in support of or in opposition to governmental action at all levels and by all branches. Yet lawsuits for civil damages have threatened the active polity envisioned by the Founders. These lawsuits claim injury from citizen contact with government agencies and their representatives, or with the electorate, on a substantive issue of public importance.

These litigation-based attempts to stifle debate were first recognized by Colorado environmental attorney George Pring and University of Hawaii sociologist Penelope Canan working independently in the late 1970s. By 1984, the duo, now professors at the University of Denver, had begun investigating the phenomenon, which they dubbed "Strategic Lawsuits Against Public Participation" in government, or "SLAPPs." Pring's first article on the topic appeared in 1985 6 and Canan and Pring first used the term "SLAPP" in print in their first joint publications three years later.7