User:Rhsimard/exper/Strategic lawsuit against public participation/sandbox

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.

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, of course, 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.

History
The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance. The concept originators later dropped the notion that government contact had to be about a public issue to protected by the Right to Petition the Government as provided in the First Amendment. It has since been defined less broadly by some states and more broadly in one state (California) where it includes suits about speech on any public issue.

The original conceptualization proffered by Canan and Pring emphasized the right to petition as protected in the United States under the US Constitution's specific protection in the First Amendment's fifth clause. It is still definitional: SLAPPs refer to civil lawsuits filed against those who have communicated to government officialdom (in its entire constitutional apparatus). The Right to Petition granted by Edgar the Peaceful, King of England in the 10th century, antedates the Magna Carta in terms of its significance in the development of democratic institutions. As currently conceived, the right claims that democracy cannot function if there are, or if interest groups can erect, barriers between the governed and the governing.

According to New York Supreme Court Judge J. Nicholas Colabella, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined." A number of jurisdictions have made such suits illegal, provided that the appropriate standards of journalistic responsibility have been met by the critic.

Canada
One of the first cases in Canada to deal with a SLAPP was Fraser v. Saanich (see [1999] B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities. The first case to discuss and apply the Protection of Public Participation Act (PPPA) was Home Equity Development v. Crow, (see [2002] B.C.J. No. 1805 (B.C. S.C.)) (QL). The defendants' application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. Many felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project.

In Ontario, the decision in Daishowa v. Friends of the Lubicon (see [1996] O.J. No. 3855 Ont. Ct. Gen. Div.)) (QL) was also instructive on SLAPPs. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.

Some political libel and forum shopping incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.

Following the decision in Fraser v. Saanich, the Protection of Public Participation Act went into effect in British Columbia in April, 2001. It was repealed in August, 2001.

Québec's then Justice Minister, Jacques Dupuis, has proposed an anti-SLAPP bill on June 13, 2008. The bill was adopted by the National Assembly of Quebec on June 3, 2009. As of now, Quebec's amended Code of Civil Procedure is the only anti-SLAPP mechanism in force in Canada.

United States
California has a unique variant of anti-SLAPP legislation which has led a significant volume of SLAPP litigation in that state. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone. The rest of the states combined had about 341, of which Massachusetts accounted for 176, raising the question whether California's SLAPP statute is accomplishing its primary objective of reducing costly litigation The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on constitutionally protected activity. Then, the burden shifts to the plaintiff, to affirmatively present evidence to show that they have a reasonable probability of prevailing on the action. The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case without the benefit of discovery.

If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.

California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute. Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.

At least 26 other states and one territory have also enacted statutory protections against SLAPPs. [May be out of date, needs checking] These are Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, , Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack protections.

There is no federal anti-SLAPP law. The extent to which state laws apply in federal courts is unclear, and the Circuit courts have reached different conclusions. The United States Court of Appeals for the Ninth Circuit has allowed California litigants to use their state's special motion in federal district courts located in California, in cases where the court is hearing at least one California state law claim through the doctrine of supplemental jurisdiction. However, the United States Court of Appeals for the First Circuit has held that the Massachusetts anti-SLAPP law, as a mere matter of procedure, does not apply in federal courts.

It has been argued that the lack of uniform protection against SLAPPs has encouraged forum shopping; proponents of federal legislation have argued that the uncertainty about one's level of protection has likely magnified the chilling effect of SLAPPs.

In December 2009, Rep. Steve Cohen introduced the Citizen Participation Act in the U.S. House. This marks the first time the Congress has considered federal anti-SLAPP legislation (though the Congress is currently considering the closely related issue of libel tourism.) Like many state anti-SLAPP laws, H.R. 4364 would allow the defendant of a SLAPP to have the suit quickly dismissed and to recover fees and costs.

Balancing the Right of Access to the Courts
The SLAPP penalty stands as a barrier to access to the Courts by providing an early penalty to claimants who seek judicial redress. In recent years, the courts in some states have recognized that enforcement of SLAPP legislation must recognize and balance the constitutional rights of both litigants. It has been said: Since the Magna Carta, the world has recognized the importance of justice in a free society. “To no one will we sell, to no one will we refuse or delay, right or justice.” (Magna Carta, 1215.) This nation’s founding fathers knew people would never consent to be governed and surrender their right to decide disputes by force, unless government offered a just forum for resolving those disputes.

The right to bring grievances to the courts, in good faith, is protected by state and federal constitutions in a variety of ways. In most states, the right to trial by jury in civil cases is recognized. The right to cross-examine witnesses is fundamental to our judicial system. Moreover, the first amendment protects the right to petition the government for a redress of grievances. The “right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.” Because “the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights,’ ... the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values. This balancing question is resolved differently in different states, often with substantial difficulty.

In Palazzo v. Alves (No. 2006-172-Appeal) the Court wrote: By the nature of their subject matter, anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard with respect to issues of public concern. On the other hand, it is important that such statutes be limited in scope lest the constitutional right of access to the courts (whether by private figures, public figures, or public officials) be improperly thwarted. There is a genuine double-edged challenge to those who legislate in this area.

The most challenging balancing problem arises in application to SLAPP claims which do not sound in tort. The common law and constitutional law have developed in the United States to create a high substantive burden to tort and tort-like claims which seek redress for public speech, especially public speech which addresses matters of public concern. The common law in many states requires the pleader to state accurately the content of libelous words. Constitutional law has provided substantive protection which bars recovery against a first amendment defense except upon clear and convincing evidence that there has been deliberate or reckless falsehood. For this reason, ferreting out the bad faith SLAPP claim at an early stage of litigation should be accomplished with relative ease. Extension of the SLAPP penalties to factually complex cases, where the substantive standard of proof at common law is lower presents special challenges.

Europe

 * In 2010 and 2011, a French blogger got summoned twice by the communication company Cometik over exposing their quick-selling method (a.k.a. one shot method) and suggesting a financial compensation for his first trial. The company got dismissed in each affair, but lodged an appeal in each case. On March 31, 2011, the company received a severe condemnation:
 * the censorship of any reference (of its name) on Mathias′s weblog,
 * 2,000 euros as damages,
 * the obligation to publish the judicial decision for 3 months,
 * 2,000 euros as procedural allowance,
 * all justice charges for both first & appel ("appel": abbr. for "appellate" or misspelling of "appeal"? ) instances.

United States

 * Prominent foreclosure defense attorney Matthew Weidner was sued by Nationwide Title, a foreclosure processing firm. Nationwide Title also obtained a gag order against another foreclosure defense lawyer from posting videos of their employees admitting they lied under oath when processing foreclosure documents. The gag order—a prior restraint—was issued without the other party present and is under appeal by the American Civil Liberties Union.
 * Barbra Streisand, as plaintiff, lost a SLAPP motion after she sued an aerial photographer involved in the California Coastal Records Project. Streisand v. Adelman et al., in California Superior Court; Case SC077257 See Streisand effect
 * Nationally syndicated talk radio host Tom Martino prevailed in an anti-SLAPP motion after he was sued for libel by a watercraft retailer. The case received national attention for its suggestion that no one reasonably expects objective facts from a typical talk show host.
 * Kim Shewalter and other neighborhood activists, as defendants, won an anti-SLAPP motion against apartment building owners. The owners had filed a SLAPP suit because of the defendants' protest activities.
 * Barry King and another Internet poster, as defendants, won an anti-SLAPP motion against corporate plaintiffs based on critical posts on an Internet financial message board.
 * Kathi Mills won an anti-SLAPP motion against the Atlanta Humane Society, Atlanta Humane Society v. Mills, in Gwinnett County (Georgia) Superior Court; case 01-A-13269-1
 * Karen Winner, the author of "Divorced From Justice, is recognized as "[the] catalyst for the changes that we adopted," said Leo Milonas, a retired justice with the Appellate Division of the New York state courts who chaired a special commission that recommended the changes adopted by Chief Judge Judith Kaye." But in 1999, Winner, along with a psychologist/whistleblower, and several citizens were SLAPPed for criticizing the guardian ad litem system and a former judge in South Carolina. Winner's report,  "Findings on Judicial Practices & Court-appointed Personnel In The Family Courts In Dorchester, Charleston & Berkeley Counties, South Carolina"  and citizen demonstrations led to the very first laws in South Carolina to establish minimum standards and licensing requirements for guardians ad litem — who represent the interests of children in court cases. The retaliatory  SLAPPs have been dragging on for nearly 10 years, with judgments totaling more than $11 million against the co-defendants collectively. Reflecting the retaliatory nature of these suits, at least one of the co-defendants is still waiting to find out from the judges which particular statements if any he made were actually false.
 * From 1981 to 1986, Pacific Legal Foundation and San Luis Obispo County, California, filed a suit attempting to obtain the mailing list of the Abalone Alliance to get the group to pay for the police costs of the largest anti-nuclear civil-disobedience act in U.S. history at the Diablo Canyon Power Plant. Pacific Legal Foundation lost at every court level and withdrew the  suit the day before it was due to be heard by the U.S. Supreme Court.
 * In March 2009, MagicJack (a company who promotes a USB VOIP device) filed a defamation suit against Boing Boing for exposing their unfair and deceptive business tactics regarding their EULA, visitor counter, and 30 day trial period. This was dismissed as a SLAPP by a California judge in late 2009. In the resulting ruling, MagicJack was made responsible for most of Boing Boing's legal cost.
 * In the case Comins vs. VanVoorhis a Florida man named Christopher Comins filed a defamation suit against a University of Florida grad student after the student blogged about a video of Comins repeatedly shooting someone's pet dogs. This was cited as an example of a SLAPP suit by the radio show "On the Media".
 * In January 2011 Sony Computer Entertainment America sued George Hotz and other individuals for jailbreaking the Playstation 3 and publishing encryption and signing keys for various layers of the system's architecture. The defendants and the Electronic Frontier Foundation consider the case an egregious abuse of the Digital Millennium Copyright Act. Hotz settled with Sony before trial.


 * In effort to prevent four women from filing any Public Records Requests without first getting permission from a judge, or from filing future lawsuits, the Congress Elementary School District filed a SLAPP suit on January 28, 2010. The Goldwater Institute, a think tank based in Phoenix, AZ, represented the four defendants. The school district said that it has been harassed so often by Warren that it was not able to functionally educate its students. Toni Wayas, the school district’s superintendent, claimed "that it had, time and time again, complied with the requests" The Goldwater Institute argued that the school district had been in violation of state laws mandating government transparency in the past. Investigations in 2002 and 2007 by the state Ombudsman and Attorney General uncovered violations of the state’s open meeting law by the Attorney General’s Office. According to Carrie Ann Sitren of the Goldwater Institute, this was “a clear attempt to silence people in the community who have been critical of the board’s actions, and have made good-faith attempts to ensure the district is spending taxpayer money wisely.” None of the records requested were private or confidential, and thus, should have been readily available to be released to the public, according to the assistant state Ombudsman.
 * In effort to prevent four women from filing any Public Records Requests without first getting permission from a judge, or from filing future lawsuits, the Congress Elementary School District filed a SLAPP suit on January 28, 2010. The Goldwater Institute, a think tank based in Phoenix, AZ, represented the four defendants. The school district said that it has been harassed so often by Warren that it was not able to functionally educate its students. Toni Wayas, the school district’s superintendent, claimed "that it had, time and time again, complied with the requests" The Goldwater Institute argued that the school district had been in violation of state laws mandating government transparency in the past. Investigations in 2002 and 2007 by the state Ombudsman and Attorney General uncovered violations of the state’s open meeting law by the Attorney General’s Office. According to Carrie Ann Sitren of the Goldwater Institute, this was “a clear attempt to silence people in the community who have been critical of the board’s actions, and have made good-faith attempts to ensure the district is spending taxpayer money wisely.” None of the records requested were private or confidential, and thus, should have been readily available to be released to the public, according to the assistant state Ombudsman.

Canada

 * In May 2010, Youthdale Treatment Centres of Toronto, Ontario filed a defamation suit against various former patients, parents of former patients, and other persons, claiming CAD $5,000.000.00 in damages. The lawsuit, filed on May 5, 2010 on behalf of Youthdale by Harvin Pitch and Jennifer Lake of Teplitsky, Colson LLP claimed that these persons were involved in a conspiracy to, among other things, have Youthdale's licence to operate revoked.  Youthdale also claimed their reputation was damaged as a result of various actions by the named defendants, which Youthdale alleged included the creation of websites and blogs containing complaints against Youthdale, including alleged accusations of unlawful administration of psychotropic medications.  A notable left-turn for Youthdale occurred in July 2010, when Youthdale became the subject of a Toronto Star investigation, in which it was found that Youthdale had been admitting children to its Secure Treatment Unit that did not have mental disorders.  The case is still ongoing against some of the named defendants.