Decentering the First Amendment

Law & Society Review, 1997 by Neal Milner

George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out. Philadelphia: Temple University Press, 1996. Pp. xiv 279. $59.95 cloth; $24.95 paper.

I. The Authors' Law-Centered Ideology and Alternative Visions

The power and limits of this book lie in its simplicity. In SLAPPs, Pring and Canan identify a problem, tell why it is serious, and offer a way to deal with it. The problem is the proliferation of SLAPP suits (an acronym for strategic lawsuits against political participation), which are civil complaints or counterclaims filed against nongovernment individuals or organizations that have tried to use their influence by speaking or writing on public issues.

A typical SLAPP suit involves a developer suing a neighborhood group in response to the group's claim at a zoning meeting that the developer's proposed housing development will cause environmental degradation. The developer sues for libel, slander, or defamation on the grounds that what was said was a lie and damaged his reputation.

The authors cut to the chase by convincingly showing that despite all this talk about slander, damage, truth, and reputation, these suits try to stop behavior that is protected by the First Amendment's petition clause, which grants the right of individuals to petition government for redress of grievances. Judges should see these cases as that and noting else. In the authors' minds, this right is the foundation of political participation, and the responses to these suits should be swift and straightforward in order to avoid chilling participation. The proper swift response is a countersuit asking for summary dismissal on the grounds that the litigation violates the petition clause of the First Amendment.

The book attempts to document the seriousness of the problem by showing the wide variety of policy issues and settings where these suits appear. It discusses the impact of these cases, especially how they chill participation even when the SLAPPs lose in court as they usually do, and it describes the best ways to counter SLAPP suits. Both authors have been heavily involved with SLAPP issues around the country. Pring has been an expert witness regarding the chilling effects of such lawsuits. Canan was actually a target of a threatened suit, has worked on such litigation, and has spoken all over the country about the danger of this kind of litigation.

The book SLAPPs is driven by a powerful ideology that is based on faith in the effectiveness and dominance of formal law. Official law is at the center of this story. The book is about threats to that law and how law can be used in its official capacity to stave off these threats. Pring and Canan's perspective resembles that of the former film critic and now columnist Frank Rich in his discussion of the film The People versus Larry Flynt. Like Rich (1996:55), the authors want us to "root for the Constitution." Rich's column, which was reprinted as an advertisement for the film (e.g., in New Yorker 1996:55) claims that The People versus Larry Flynt is "an eloquent antidote to anyone who would jawbone the First Amendment to clean up the gross excesses of our culture."

The SLAPPs authors have to contend with a different kind of jawboning of the First Amendment and with cultural excesses that do not involve sexual degradation and voyeurism but rather lying, name calling, exaggeration, and accusations that many people find offensive, excessive, and indicative of the decline of our civic culture. Whatever their legal rights, the targets of SLAPP suits often carry out these civic cultural excesses. In this book the name callers, petition circulators, and passionate opponents are the heroes, or at least the victims who must be legally vindicated, not because of their character or who they are but because their beliefs and activities are protected by the petition clause of the First Amendment even if their behavior is unseemly and their words false.

The Pring and Canan ideology frames people, problems, and solutions in legal terms. The law is the petition clause of the First Amendment, and those who file SLAPP suits are outside the law. Pring and Canan condemn these lawsuits with a language that demonizes the SLAPP suit filers as lawless and identifies the targets of these suits as upholders of our basic rights. They associate the filers with the spread of disease: "Like some new strain of virus," these suits are "stalking America." "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to public officials, to `speak out' on public issues." In thousands of suits, both groups and individuals are now being "routinely sued in multimillion-dollar damage actions for such "all-American political activities" as circulating a petition, writing a letter to an editor, testifying, lobbying, or peacefully demonstrating" (p. 1).

The authors' goal to make petition clause law more effective is in the tradition of the early days of the Law and Society Association when the Association's objectives were stated on the cover of the Law fR Society Review: