Thursday, February 6, 2014

A SLAPP in the Face of American Civil Justice

Money works in abstract ways in our society these days. If it can’t buy what it wants from the House and Senate (or what passes these days for our Supreme Court), then it works to beggar the opposition through lawsuits. Money doesn’t like opposition and by god it increasingly has none.

Never mind that our tattered Constitution guaranties our day in court. The Constitution never said it would guarantee citizens could afford that day.

But that’s all preface.

Never heard of SLAPP? In this day of the constant blizzard of acronyms, that’s not surprising. I read a lot of news and get buried in that
snowbank, Googling my way through a half dozen or so acronyms to try to make sense of the article. Who really knows, when PRM can mean Partner Relationship Management, Parameter, Professional Risk Manager, Project Resource Manual, Performance Reference Model, Public Relations Manager, Performance Report Message or Pulse Ratio Modulation? And that’s a mere eight among the yet another fifty-three possibilities? If it’s PRM on the CIA, it could mean a performance report message on the Central Intelligence Agency, among another 8,000 other combinations. You get my drift.

The particular SLAPP of which we speak is the Strategic Lawsuit Against Public Participation and if that sounds pretty un-American to you, it did to me as well. So I did what I do when confused, Googled it and then followed that up with Wikipedia, which had this to say:

“A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”

Jesus, here in America and that kind of nonsense is acceptable? Guess I better grow up, but that’s pretty much what my old daddy called ‘beating the little guy to death with litigation.

“The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims.”

All beautifully laid out in non-judgmental language, clouding what is clear, sifting flour into the broth. Crafting an approach, don’t you love it? Crafting takes teams and years and lots of dough, so it’s that last line that’s the core of the Wikipedia text. How do we deter abusive lawsuits and still support valid good faith claims? So far, crafting hasn’t slowed the money crowd from using law for opposing purposes--burying their critics in an avalanche of legal costs. Are you really willing to go broke fighting Big Oil on the Keystone XL Pipeline or fear of fracking (FOF, my personal acronym) in your back yard?

Which delivers us to my point and, I know, it’s taken almost 500 words to do that.

SLAPP legislation may not hit your personal pocketbook, but it deters others from risking their nest-egg and reputation on your behalf. If you’re like me, you may feel strongly for or against some environmental or health issue, but you’re not bloody likely to be out there in the rain and cold, fighting for what’s right as you see it.

That puts American justice and the rule of law very much on the line.

Recognizing that, twenty-eight states (and the District of Columbia) have enacted anti-SLAPP legislation. By God the states may step in and finally save us when our United States Congress can’t find their ass with both hands. But that leaves twenty-two where these lawsuits can be brought and Big Money has the deep pockets to ‘shop’ their lawsuit to a favorable venue. Unfortunately, the suit doesn’t have to be brought in the state where you reside or even where the complaint exists. So a common strategy is ‘forum shopping,’ where the big guys hunt down courts and judges and juries to their liking.

It’s a stacked-deck, both expense and justice wise. As they say, “money talks, but it don’t sing and dance.” That part in the musical is played by another Mo-Town robed bunch, the Supremes.

But we have fifty other Supreme Courts in the states. New York Supreme Court Judge Nicholas Colabella said, "Short of a gun to the head, a greater threat to First Amendment expression than SLAPPs can scarcely be imagined." New York is among the states with anti-SLAPP legislation. Come to think of it, the only greater gun to our head I can think of is the machine gun the Supreme Court gave corporations to express free speech with a megaphone.

But, what the hell, succumbing to fear, intimidation, mounting legal costs or simple exhaustion is the new American way.

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