Steve Fogle's Feature

Steve Fogle's Feature A SLAPP By Any Other Name Still Hurts

A funny thing happened on the way back from the city council meeting last week. I got served with a lawsuit for having opposed plans to build the latest Mega-Mart in my neighborhood. "Holy Paper Cut, Batman!" I shouted. Doesn't the First Amendment give me the right to speak out on issues that affect me, especially to my elected officials?

Of course it does, but as many individuals and citizen groups are finding out these days, you might have to defend that right in court. SLAPP (Strategic Lawsuits Against Public Participation) suits are on the upswing across the country, and certainly here in Texas.

Call it capitalism gone soft, but it's another byproduct of the information age in which we live. It is a relatively new and undoubtedly uncomfortable phenomenon to have private business activities so much in the public eye. The steady stream of new information that travels over the Internet and in blogs, investigative reports, mass media broadcasts, and even simple text messages creates more opportunities for citizen awareness than ever before. This awareness, though, can also spark opposition from one well-intended group to the plans of another well-intended group or individual. It should come as no surprise that the light of public scrutiny is disconcerting to those unaccustomed to it, and the natural reaction is to try to shut the curtains.

When the curtains can't be pulled, though, the next option is increasingly becoming a lawsuit against those holding the unwanted light on what others perceive to be absolutely private affairs. While it remains true that citizens have the right to speak out in favor or in opposition on public issues, what SLAPP suits are meant to do is to silence the voices by attacking the pocketbooks.

Lawsuits are expensive. They are easy to file, hard to get dismissed, and a painful process that can drag on for months and even years. The toll they take on our daily lives, on our mental and physical resources and last, but certainly not least, on our wallets is undeniable. SLAPP suits, and those who employ them, may couch their discontent in terms of defamation, tortious interference with contracts, or tortious interference with business relations, but what they really want to achieve is the sound of silence.

On the other hand, it is undeniable that unscrupulous individuals or even well-intended ones are capable of interfering with the legitimate or perceived rights of others. Those with contracts or business interests have the right to seek redress for illegal interference with their contracts or business interests. The question becomes, however, how do we balance the competing concerns of citizens who want to speak out on public issues and those who want to conduct their business affairs without unjustified or illegal intrusion by others?

Anti-SLAPP legislation is increasingly the answer. Many states already have laws on the books similar to the California statute which is used frequently as an example. In 1993, faced with an explosion of SLAPP suits, California passed what is now Code of Civil Procedure section 425.16. It sets up a relatively simple scheme based on balancing the principles of free speech and private enterprise. It doesn't abolish the right to sue someone who wrongfully interferes with your contracts; rather, it follows the thought that you must have something more than the usually relaxed standard for instituting a suit. According to California's statute, the Plaintiff is free to file suit, but the Defendant who believes the suit is really an attempt to quash his exercise of free speech can file the equivalent of a federal court motion to dismiss for failure to state a claim. If the Plaintiff can make a prima facie case, the case moves forward. If he cannot, the case is dismissed. Timing is everything, as with most things in life. The real protection against a SLAPP suit comes from the statutes' requirement that this prima facie case be shown before the cost of discovery and trial are incurred.

Texas needs such an Anti-SLAPP statute. Very few individuals or citizen associations can afford defense costs in the hundreds of thousands of dollars. To require them to incur the costs of litigation and face a slim or nonexistent opportunity to recoup those costs after trial is a form of economic suicide. They will have won the battle to vindicate their right to free speech only to lose the war of economics.

Such a statute would not be unfair to those who believe their rights are unjustifiably interfered with by the opposition voices. For those cases, the statute would not bar them from the courthouse, but would ensure that they have sufficient evidence before the costs are incurred to warrant the filing in the first place. In fact, it is not unreasonable to think that an Anti-SLAPP statute would facilitate a greater number of settlements of those suits that survive the motion to dismiss because their strong factual basis would be recognized much earlier in the case.

The Texas Legislature made an attempt at passing such legislation in the 2007 session, but with other pressing matters, the two proposed bills failed to make it out of the committee process. We believe it's time to press the issue for the protection of both our citizens' rights to be heard as well as the private rights wrongfully interfered with by the malcontent. We are urging everyone to become more aware of this issue and to begin contacting their state legislators this year about proposing a bill for the 2009 session.

— Steve Fogle is a partner at Jackson Walker. He can be reached at sfogle@jw.com.