Decentering the First Amendment

Law & Society Review, 1997 by Neal Milner

1. Variability in the Distribution of SLAPP Cases

Though the authors claim that they focus on 11 SLAPP situations, these are never reported in full nor are they analyzed comparatively. Through some very hard work, they manage to identify 241 cases that are the basis for much of what they discuss, but Pring and Canan do not offer any information about how the number of cases has fluctuated from year to year, nor do they tell how they arrive at the statement that there have been "thousands of cases" and that "thousands of people" have been directly affected. There is no way of telling whether the problem that is stalking America is getting better or worse. If SLAPPs are stalking America like a new strain of virus, then an epidemiologist would certainly report where the virus has been found. Assuming that more suits have been filed lately, which, if not supported by data, is consistent with the authors' tone, there is also a counter trend as SLAPP targets have developed good ways to stop the suits in their tracks. There is no way of knowing the extent to which the new counter strategies affect the numbers of SLAPPs.

Information on other important comparisons is missing. There is no way to tell if there are regional or cultural differences, nor are there ways of telling why some people or groups are reluctant to participate in politics after being SLAPP targets while others are not. Does the issue leading to the SLAPP affect the way SLAPPs emerge? (The authors very briefly discuss this question on p. 219.) Why do some lawyers understand the best ways to counter SLAPP suits while others still do not have a clue?

One factor that seems important from Pring and Canan's own evidence but is not discussed comparatively or thoroughly is access to legal services. What appears to be crucial for both targets and filers is easy and relatively inexpensive access to lawyers. Hints of this appear here and there throughout their discussions of the cases, but they offer little insight into the access question except to advise SLAPP targets to make certain that they get attorneys who understand the best way to counter a SLAPP suit is by getting the court to dismiss it. There are all kinds of tantalizing bits of information about lawyers and SLAPPs. An upscale Washington, DC, neighborhood group gets the influential Arnold and Porter firm to countersue someone who had filed a SLAPP suit against it. Similarly a consumer group gets the prestigious Chicago firm of Kirkland and Ellis to represent it in a counter SLAPP. A high-powered Los Angeles firm represented a Huntington Beach developer in a SLAPP suit against those who complained about his development plans. The targets responded by hiring a person who had been chosen Los Angeles "lawyer of the year" to file a countersuit (p. 134). Pring and Canan suggest that there is money to be made by lawyers in these countersuits because they are very winnable and conducive to contingency fees, but we get little sense of how or why these lawyers got involved.