Decentering the First Amendment

Law & Society Review, 1997 by Neal Milner

Insurance companies play both a facilitating and limiting role. Liability insurance sometimes covers legal expenses, but at the same time insurance companies appear to put pressure on their client to settle (see, for example, p. 99). There is other evidence that institutionalized access to free or cheap legal assistance is crucial, although the authors do not give this possibility much attention. Public officials may file SLAPP suits because they have access to free legal counsel through the government's own legal staff or through a public employees' union like the Colorado Education Association (pp. 65-66). Public employee unions may be so willing to get involved because they themselves worry about being sued for failure adequately to represent their members. Other variations of access to government attorneys appear. In a Texas case the state attorney general intervened on behalf of the targets of the SLAPP suit (p. 134). There is a brief mention of conservative legal foundations offering legal services to those logging companies and others filing SLAPPs because they believe that their property rights were violated. The League of Women Voters, the ACLU, and Nader organizations have all been involved in behalf of the targets of SLAPPs.

All of this suggests variability and offers the promise of description of the link between access to attorneys and the ways SLAPPs develop and get played out. We know that access to legal services varies, sometimes as a result of differences in legal culture (Engel 1984). To understand dispute transformation, one of the theoretical underpinnings Pring and Canan claim for their book, it is essential to know the interaction between lawyers and others in the process that defines a dispute as a legal one (Milner 1986; Stern 1976; McCann 1994).

In the most explicit discussion about access to lawyers, Pring and Canan offer some reasons why attorneys are reluctant to get involved in defending someone against a SLAPP. Lawyers want up-front money which SLAPP targets frequently do not have. Most lawyers do not have legal expertise in this area and thus do not see the constitutional implications of the case. Attorneys may risk their popularity with local businesses, which are often on the filing end of a SLAPP. These reasons may all be true, but there is no way to find out from the book because the cases they report do not offer information either to confirm or deny these reasons for lawyers' reluctance.

2. Variability in the Effect of SLAPP Suits: Differences between What the Authors Say and What the Authors Show about the Chilling Effect

According to Pring and Canan, no SLAPP effect is more pervasive and insidious than the chill. Indignation about chilling fuels the book's passion like nothing else. SLAPPs chill free speech by making those who have been sued reluctant to continue to participate in political life. SLAPP targets may fear speaking out on public issues or writing letters to newspapers or even signing petitions. The authors claim that SLAPPs are insidious because even though the filers seldom win in court, they "win in the real world" (p. 44) because the threat of having to expend the time and money necessary to fight these suits chills political participation.